Proportionality and Judicial Activism: Fundamental Rights Adjudication in Canada, Germany and South Africa

Abstract

Niels Peterson’s Proportionality and Judicial Activism is a very timely and accomplished book. It is an important addition to the now quite considerable literature on proportionality, and it would benefit anyone interested in this omnipresent doctrine, especially in the three jurisdictions it covers—Germany, Canada, and South Africa. The book is not too long, and extremely readable—two non-negligible advantages for any reader—and Peterson has a rare capacity of simplifying intricate analytical moves and theoretical constructs without losing accuracy, a talent he also applies to the many cases he reviews in the book. The book is also innovative and ambitious, making it a very interesting and enriching read. However, its innovation sometimes comes at the expense of accuracy and consistency, and the book could have benefited from framing its goals a bit more modestly. At the center of the book is the following bold thesis: proportionality and balancing, while giving judges considerable discretion, do not, as a matter of empirical fact, bring them to usurp that discretion and engage in judicial activism and self-empowerment. The reason, according to the book, is that judges fear losing public legitimacy—the main source of their power—and therefore limit the use of proportionality, by and large, to the realm in which judicial review is legitimate. This realm, according to the book, is defined based on John Hart Ely’s process theory, and is thus the correction of political democratic market failures. The book reviews what it takes to be all the relevant proportionality cases in three key jurisdictions—Germany, Canada, and South Africa—and classifies them according to criteria developed by the author, showing that most proportionality cases fall into the non-activist rather than the activist camp. In this review I will give a brief account of the main arguments in the book, commenting on them as I go along, and then make the following main claim: the book does not fully achieve what it claims to do—prove empirically that proportionality and balancing are not related to judicial activism. The way the research is framed, I would argue, does not fit the purpose for which it is devised and has some internal tensions and key methodological problems. However, many of the contributions of the book are to be found in the details and on the way to the conclusions, rather than in the conclusions themselves. In particular, to my mind, its greatest achievement is in its classification method, which shows that when judges use the heading of proportionality they do myriad different things, many of which do not include engaging directly with the content or importance of rights, and, I would argue, resemble the functions of an administrative court. Elsewhere I called this phenomenon, the administrization of constitutional law.1 Whether these judicial interventions amount to judicial activism or not, and under what theory of judicial review they can be justified, is not resolved by the book. But, the in-depth analysis of the cases in the book and its novel classification system show that proportionality is more complex than its four simple subtests suggest, and this must inform any debate about proportionality and activism. In the first chapter Petersen develops a sophisticated and well-argued-for theory of judicial activism. According to Petersen, “[t]he question of whether courts acted in an activist manner depends on whether they were in line with the role that they are supposed to play in a liberal democratic political system” (at 15). It would depend, therefore, on our theory of judicial review. Petersen chooses a theory based on John Hart Ely’s process theory, according to which courts should not intervene in the substance of the democratic game—value choices should be left to democratic majorities—but rather correct market failures in the democratic process, and, like a referee, make sure that the players adhere to the rules of the democratic game and not rig it in unfair ways. Courts should therefore protect “discrete and insular minorities” against majoritarian bias, and rights related to the democratic process such as free speech and voting rights.2 Petersen extends Ely’s theory especially by including also the protection against legislative capture by interest groups and lobbyists (at 26–27). The chapter is masterfully written, and the exposition of market-failure-based accounts is excellent. Relating activism to one’s theory of judicial review is a novel and unconventional approach, and it strikes at a soft spot of definitions of activism that view it as an unwarranted departure from the law.3 Such definitions must rely on a theory of judicial review to define what the law is but do not always acknowledge that. However, since Petersen’s definition of activism is strictly normative, it departs from the common use of the term, which also has a contextual and descriptive element—activism is usually assessed in relation to a certain norm for judicial intervention prevalent in the relevant society, and thus cannot be defined solely in normative and non-contextual terms.4 Choosing Ely’s process theory is also novel and unconventional, coming from a German scholar, as German constitutional jurisprudence is emphatically substantive, and talks freely about judges as safeguarding an “objective value order,”5 while rejecting as overly American perceptions of judges as mere referees.6 It is especially a novel choice to support proportionality and balancing, as these are justified precisely for the type of jurisprudence which engages with values, and therefore must resort to balancing when such values conflict.7 If successful this choice could show that proportionality is justified even within a theory that emphasizes judicial restraint, which would be a counterintuitive, and therefore important, finding. However, squaring actual proportionality jurisprudence with Ely is a tough job, and as I will argue, the actual review of the cases by Petersen does not quite do that, and uses another definition of non-activism instead. In the second chapter Petersen delves with impressive skill into the analytically complex and abstract debate on balancing, incommensurability, and indeterminacy—the accusation that balancing compares things with no common denominator (e.g., the right to free speech and the interest in public security) so that it lacks rational content, and is therefore indeterminate and does not constrain judicial discretion. This chapter too is masterfully written, and Petersen convincingly shows the flaws in several key attempts to claim that balancing can escape this critique. However, the conclusions drawn from this realization are less convincing to my mind and do not appreciate the full force of the critique. Petersen is comforted by the fact that other methods, such as categorical rules, also suffer from indeterminacy, and thinks the choice of proportionality can be justified as a policy choice that prefers standards over rules (trading certainty for more flexibility to adjust to the particularities of the case) and more rather than less judicial control over the legislature (at 58). However, rules (unless one adopts full rule-skepticism) are only partially indeterminate—in the “hard” cases, or in the “penumbra”8 —while balancing, if it amounts to comparing the uncomparable, seems completely indeterminate; it is not clear what content it has at all, and what direction, however little, it can give to judges, if it suffers from the problem of incommensurability. Second, if balancing gives little or no guidance to judges, the problem is not just a policy problem of trading certainty with accuracy; in constitutional law, it is a political problem of accountability and representation. Finally, the idea that less guidance to judges means more control of the legislature is based on the assumption that judges, given discretion, would use it primarily to control the legislature rather than capitulate to it. If this is not correct, rules might actually control the legislature more than balancing.9 Having defined activism, and concluded that proportionality allows for judicial discretion, Petersen proceeds, in the last four chapters (chs. 3–6), to the heart of the book—the empirical analysis which aims to show that despite its open-endedness, proportionality does not lead to activism. I will briefly survey here the design and finding of the research and elaborate more in the next part. The survey consists of reviewing 250 German cases, 67 Canadian cases, and 44 South African cases, each analyzed according to roughly 10 criteria, depending on the jurisdiction (tables at 84–86). These include the four subtests of proportionality: illegitimate purpose, rationality (means fit ends) and necessity (no less restrictive means) joined together, and balancing (benefits outweigh costs); in addition, there are several other criteria, some of which are the author’s own, that will be discussed later. Each case is categorized under one or more of these headings, depending on criteria set by the author. The pool of cases reviewed consists of only (and all) cases in which the court struck down legislation, and the review period begins, for each jurisdiction, roughly since proportionality review was introduced to the system. The author then analyzes the results looking especially at the use of the fourth test of proportionality—balancing—which is the only test to directly and explicitly engage in comparing and making trade-offs between rights and interests, and is thus taken to be the main indicator for judicial activism. The first finding is that the use of balancing in both Canada and South Africa is consistently modest and stands below 10 percent of all proportionality cases reviewed (except for an increase in Canada toward the end of the survey); in Germany, balancing’s use was modest in the early years but rose dramatically in the 1970s and has plateaued since at around 30 percent (graph at 82). These findings are interpreted to support two theses by the author: (i) that the use of proportionality does not bring about judicial activism (since most proportionality cases do not include balancing); (ii) that the reason for that is that courts are subject to institutional constraints—they will lose public legitimacy if they are too activist. This explains why there is little balancing in Canada and South Africa, where the Court has not earned full legitimacy yet, and why as the German Court earned more legitimacy (and maybe the Canadian Court also in recent years), it increased its use of balancing. The last chapter analyzes only balancing cases, and shows that even these cases, most of the time, are not “real” balancing cases, in the sense of directly balancing rights and public interests, and only few cases can be so identified. Does the research as just described achieve its purported goal: to show empirically that “all three examined courts refrain from using proportionality for purposes of judicial activism” (back cover)? I believe it does not. The reason is a mix of methodological problems and inconsistencies in the design and execution of the research. As far as I can tell, the only quantifiable empirical proof to show that in all three jurisdictions the use of proportionality is not activist is the low level of balancing cases in those jurisdictions summarized in the graph at 81. There are, however, several problems regarding this deduction. The first relates to what it is exactly that the author means by a balancing case. In Canada it means that the Court formally relied on the fourth, balancing, subtest of proportionality in its reasoning. However, in Canada, as Petersen acknowledges, there is a doctrinal aversion to the use of that test, so that not using balancing formally does not mean that substantively the reasoning is not based on balancing.10 What we can learn from this data pertains therefore only to the perception of activism—does the Court wish to appear activist or not (assuming that balancing sends an activist signal). It cannot tell us whether the decisions themselves are activist, since balancing can lurk below the surface. In South Africa and Germany, however, courts do not always distinguish between the four subtests of proportionality (in South Africa not at all) and when they do not, a balancing case would mean what Petersen, rather than the Court, takes to be a balancing case. Petersen identifies balancing cases based on two criteria he devises—that the reasoning includes a comparison of values, and that there are no alternative modes of reasoning that are factual or empirical, and thus indicate the use of the rationality and necessity subtests (at 73). I think these are reasonable criteria, but I would like to note two problems: first, this means that counting for a balancing case would mean different things in different cases (for some cases formal, for some substantive); second, when we move away from formal reasoning, which can be relatively objectively measured, we get into the realm of subjective assessment of the surveyor—what if, for example, there is comparison of values, but also some, but not much, reliance on factual factors and policy efficacy?—and thus the findings do not have the strength of more objectively verified data. Another problem is revealed once we look at the finding on Germany which cannot indicate a similarly low percentage of balancing cases, as in Canada and South Africa. Over the entire period surveyed, 24 percent of the cases are labeled balancing cases, and in some decades as much as 37 percent. The problem now becomes knowing what percentage counts as proof of activism or lack thereof. If Canada and South Africa are labeled not activist based on less than 10 percent balancing, does that mean that Germany should be labeled activist, or is a maximum of 37 percent still low and therefore it is not? We cannot tell since there is no criteria set for answering this question in the book. One could assume at least that this data would indicate that Germany is more activist than Canada and South Africa, but this conclusion too is not reached in the book. Instead, when we move to Germany the proof of lack of activism becomes not the actual percentage of balancing cases but the fact that this percentage was low in the early years of the Court and rose in the 1970s. This, the book argues, indicates that the use of balancing is dependent on, and thus regulated by, the threat of losing public legitimacy. As the German Court acquired more public legitimacy in the 1970s it could afford to use balancing more. In South Africa and Canada this has not happened yet, or at least not to the same extent, so balancing has remained low. But if this is now the claim, then the book has not established that proportionality would not bring about activism, only that it would not bring about activism as long as the Court does not acquire sufficient public legitimacy. And, in addition, Petersen has not shown but has only speculated that the fear of loss of legitimacy is at play—other explanations are readily available to explain the differences between the use of balancing in these countries, such as the formalist common law tradition in South Africa versus the more substantive and communitarian tradition of German jurisprudence.11 There are several other methodological as well as substantive problems that I will indicate only briefly. First, the case selection is based only on cases in which the Court overturned legislation; however, some of the seminal proportionality cases, such as Kiegsra12 in Canada, and some of the most activist proportionality cases, such as Mizrahi13 in Israel, are upholding cases. Secondly, the pool of reviewed cases in Canada and South Africa is very small, spanning between 10 and 27 cases per decade. For such a small pool, any slight change in categorization can dramatically affect the results, and Petersen does not provide us with statistical assurances that his sample is big enough for empirical conclusions. Thirdly, and substantively, the book jumps very quickly to the conclusion that balancing is the right, and only, indication of activism in the use of proportionality. This does not follow from the book’s own definition of activism as going beyond correcting Ely-type market failures, as the other tests of proportionality may also amount to non-market failure interventions, and as balancing can be used to correct market failure. The research therefore suffers from several key problems if it aims to provide hard empirical proof. However, maybe we should view it differently, as a heuristic on a large scale, or as straddling the space between qualitative/small N, and quantitative/big N research. As such, its assessment changes dramatic- ally, and I think it shows clever and sophisticated analysis and can provide us with very important and valuable findings, especially pertaining to what I have called the “administrization” of constitutional law.14 The book’s most interesting and important achievement, to my mind, is its scheme of categorization for proportionality cases. What is unique about it, is that it is not limited to the four subtests, usually associated with proportionality but adds several additional key doctrinal tests, used by courts in such cases. I would like to highlight the following tests: consistency and coherency—looking for inconsistencies within legislation or between different acts of legislation; protecting legitimate expectations—such as when a new law changes the regulatory regime without providing for a transition period for those that relied on the previous regime; procedural arguments—lack of administrative review mechanism, or mechanisms for hearing, in the implementation of the law, or even procedural flaws in the process of legislation itself; lack of determinacy of the legislative norm; and overbreadth (note that in describing these tests I have not mentioned the word “rights” even once). Petersen then goes on and reviews many key cases in all three jurisdictions to explain his categorization of them under these different headings, and does so, on the whole, convincingly and informatively. He also provides a helpful list of all the cases reviewed in the Appendix. Analyzing the cases under these headings, and also under the formal subtests of proportionality, shows that the Court is often engaged in what Petersen the review of the of legislation, and what I would the tests of administrative law to I have that in jurisdictions courts are not engaged primarily with the and of the rights in the do they even a constitutional for legitimacy they administrative law, and of law, to legislation, the same way an administrative court would do to decisions and This also from the of by such which are taken from administrative the to the legislature to correct procedural directly certain changes in legislation, judicial review following legislation over in a and so Petersen provides in his book a and sophisticated account of this phenomenon, and he is correct in our to it as he in his that courts look for flaws in legislation is however, than showing that they have not engaged in judicial activism, especially if we define activism according to Ely’s theory of judicial review. The way I Ely’s theory, it would to be and as long as they are not by for example, the reviewed in the book (at in which the German Court struck down a law that limited the of new in where there is an The Court based its on rejecting the empirical for the legislation according to which there was no for in the relevant Such a case would not fit Ely’s of judicial review. It is not a case of and insular of political that it is a case of of is in this as there was no for that, and, in any Ely this of his theory and it from a not to the rationality of a law that between and Ely usually cannot (and should not when they do the to which of the legislature are under the of but they can tell when a legislature is Petersen’s book therefore on a more of the judicial role than market and cannot rely on this to show that proportionality is not activist. is not a market failure. It and there is no in it that the free democratic However, our to rationality or what I called administrative review of legislation, the debate over activism and proportionality by describing what is at with to proportionality cases, and it does show that proportionality is not just about balancing. This about a last courts not the and four subtests of proportionality and the jurisprudence of law review they engage would be to use Petersen’s book as an for just that.