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In this chapter, I argue that rather than echoing a perception of fundamental rights as principles, and of law as practical reasoning, as the Alexyan theory would want it, the force of proportionality in French public law lies in its aura of value-proof objectivity and scientific correctness. The spread of proportionality thus expresses the mystery surrounding political moral choices in French legal thought. At the same time, it expresses domestic lawyers’ search for a legal science, exempt from subjective moral or ideological evaluations, which could rationalise such choices. Proportionality in French public law has not served so much as a tool for legal change, as the transplant account of its spread would suggest, but rather as a conceptual tool in the hands of the doctrine for systematising and justifying evolutions in domestic judicial review.
This chapter presents the story of how proportionality became a core concept in English public law. This is a story of continuity and change. It is only since its connection to European law during the 1980s that proportionality acquired conceptual autonomy and was distinguished from the common law concept of reasonableness. While its application in domestic judicial review was rejected during the 1990s, the promoters of proportionality sought continuity between the common law and European human rights standards, among them proportionality. Since the incorporation of the convention in the domestic sphere, proportionality applies as a different head of review from irrationality. As a prong-structured test, it is very akin to the global proportionality model and it involves a significant extension of judicial powers. Still, the doctrine of deference ensures that the role of courts remains different from the one ascribed to the primary decision-makers.
The enthusiastic embracement of proportionality by Greek lawyers has defied the actual practice of judicial review. While proportionality is venerated as a fundamental rights principle, it failed in establishing a new paradigm of rights and judicial review. In order to make sense of proportionality in this context, I propose to take its meaning as a transplant seriously. Nelken observes that, in many cases, legal transfers do not fit an existing social situation, but rather correspond to an imagined local future. This is the case when their goal is social change, namely, when they are commonly perceived by legal actors as legal transplants. In this chapter, I argue that, like other legal transfers in Greek law, proportionality has enjoyed a value in itself, as part of an imported constitutional civilisation. As such, it has been expected to bring about legal and even social change. In other words, proportionality has expressed domestic lawyers’ belief in the possibility of law to act on society, ‘in what is almost a species of sympathetic magic’.
This chapter situates the study within the literature on proportionality and comparative law. Contrary to the dominant universalising rhetoric, I propose to take the differences in the application of proportionality seriously. To do so, I develop a comparative law approach that places these differences within a broader legal cultural context in which they make sense. At the same time, the approach proposed here does not deny the possibility for cross-system influence and convergence, especially in the context of European integration. The comparison of the local meanings of proportionality, I argue, gives valuable information about the legal culture in which proportionality operates and about the mindset of the lawyers who use it.
This chapter traces the spread and evolution of proportionality in Greek public law. Contrary to English and French public law, proportionality met no major resistance in Greece. It emerged in this context during the 1970s and has been applied as a constitutional principle by courts for more than forty years. Greece is one of the rare legal systems where, since 2001, proportionality explicitly enjoys constitutional status. However, a survey of judicial practice nuances this image of success. Soon after the recognition of the constitutional status of proportionality, its application was limited to a manifest error test. Until the late 1990s, proportionality’s application in judicial review was particularly formal. Its function was more important in substantive case law, where it had a content close to equity. Since its constitutional entrenchment, proportionality is a hegemonic method of reasoning in Greek law. However, consensus as to its content has not led to its consistent application in case law.
In this chapter, I argue that the local paths of reception of proportionality by French and English lawyers in the field of the convention are shaped by local patterns of cultural change. In the monist and rationalist French system, proportionality and European human rights standards have been received as already inherent in domestic concepts and methods. In contrast, English dualism and analytical formalism long impeded the application of proportionality as a human rights principle in common law cases. Differences in domestic lawyers’ reactions to proportionality affect the ways in which proportionality deploys its acculturation dynamic in the field of convention rights. In France, the institutional/procedural aspect of proportionality has generally been neglected by domestic lawyers. The employment of proportionality as a European standard in judicial reasoning is residual and accomplishes a rather symbolic function. Since its reception under the HRA, on the contrary, proportionality has systematically served the fulfilment of the UK’s international obligations. Proportionality as a European principle generates an important cultural shift in English public law.
European integration is in crisis. Paradoxically, disintegration seems to be a transnational tendency. While one cannot say that proportionality bears the dynamics of disintegration itself, relevant tendencies affect its form and function in different settings. This chapter offers a particular reading of proportionality cases that have provoked much discussion among French, English and Greek legal actors. I argue that what is new about these cases is not so much the application of proportionality itself, which follows already existing local patterns characterising the reception and the evolution of proportionality. Rather, it is the particular context of disintegration in which proportionality operates. Indeed, what is observed in these much debated uses of proportionality is a rupture in the traditional local patterns of Europeanisation.
In this chapter, I argue that proportionality has represented a fusion of substance and form that is strange to the game-like nature of the common law. It has embodied a method of review, and a way of legal thinking more generally, situated in diametrical opposition to Diceyan analytical positivism. Precisely due to its anti-Diceyan meaning, proportionality has been promoted as a principle that could establish coherence in English public law through the recognition of minimum substantive values. By using proportionality language, English lawyers have sought a little bit of myth and ritual in judicial review. Hence, the spread of proportionality in English public law should be read against the background of the rise of common law constitutionalism. In this respect, the HRA officialised and enhanced more subtle and progressive cultural transformations. The spill-over dynamic of proportionality expresses the continuing search for rationalism and myth in the ongoing construction of English public law.
This chapter provides a comparative study of the application of proportionality by English and Greek judges in the field of EC market freedoms. It shows that both English and Greek judges have assumed their mission of juges communautaires de droit commun. Despite this appearance of convergence, I argue, the reception of proportionality follows local patterns of cultural change and local knowledge practices, which affect local lawyers’ possibilities to resist to the process of European integration, as well as their capacity shape this process. Common law pragmatism has allowed English courts to frame normative conflicts between domestic and EC law. When proportionality and the effet utile of EC market freedoms entered into conflict with fundamental constitutional principles of the common law, English judges have occasionally objected to their application. By way of contrast, the perception of law as science has not allowed Greek lawyers to frame normative conflicts between domestic and EC law. Proportionality as a European science has engineered important constitutional change and has considerably compromised the normativity of the Greek Constitution.
Local Versions of Proportionality. The study of difference in the use of proportionality is crucial to understanding its spread and its effects. Throughout this work, I have attempted to render the differences in the use of proportionality in France, England and Greece less enigmatic by placing them within their own context. To do so, I have approached law and proportionality as instances of language that make sense within a particular legal culture. My purpose has been to identify and interpret the local versions of proportionality, and the way they have evolved over time. Hence, I have attempted to construct a coherent discourse around the emergence and evolution of proportionality in different contexts that makes sense of its peculiar characteristics. Put briefly, I have attempted to unravel the local meanings of proportionality by reconstructing the expectations that legal actors have attached to it each time. Local meanings of proportionality unveil local paths of cultural change under pressure from external influence. Hence, their examination proves insightful as to the possibility of convergence between legal systems and as to the past and future of European integration.
Proportionality Expressing Local Visions of European Integration. European integration has relied on the idea of integration through law. Using domestic constitutional traditions as sources of inspiration, European courts have engaged different processes of integration according to the particular goals of supranational legal orders. Proportionality and the language of rights have played a major role in these processes. In Strasbourg case law, proportionality has been used as a principle of acculturation, which obliges national authorities to integrate common European constitutional values into domestic policy-making processes. In contrast, the kind of integration triggered by Luxembourg case law has traditionally focused on facts. It has consisted in the construction of a common market through the effective enforcement of EU market freedoms, sometimes to the detriment of other domestic values.
A survey of the use of proportionality language by French, English and Greek lawyers confirms the ‘doctrinal imperialism’ of proportionality. Since its emergence in France, proportionality has been perceived as conspicuous, and especially since the 2000s, it proliferates in case law. In England, proportionality spreads as a human rights head of review and culls the ‘sacred cows’ of common law review. In Greece, it is a hegemonic method of legal reasoning and it replaces pre-existing categories and standards. However, what seems to be an irresistible spread of proportionality is not so much connected to its systematic application in practice. In fact, proportionality’s content has been very different across space and time. Contrary to the claims of certain proportionality enthusiasts, proportionality has not always functioned as a pronged test for the optimal realisation of fundamental rights. Very often, structural features of the Alexyan proportionality model, like balancing or reasoning in prongs, are absent from judicial reasoning.