Notes re reading – Stacey
Constitutional democracies entrench a set of fundamental rights in their
constitutions, and have all made provision for the limitation of those rights. In each
jurisdiction, the principle of proportionality has emerged as the central analytical
tool in assessing the acceptability of rights limitations, and each jurisdiction has
adopted some version of the standard model of proportionality analysis in
performing that assessment
Proportionality tends to undermine the predictable operation of the legal system, an
important element of the rule of law
As legal subjects, we want the law to be predictable and stable because these
conditions are necessary for individual and autonomous decision making
Rule of law protects a society against the arbitrary rule of officials because it
demands that those who govern do so only through the mechanism of law and
within the limits the law imposes
Since rights are framed at the constitutional level in necessarily abstract language,
they remain inchoate until court judgements or statutory or regulatory rules give
them more concrete form. Asking judges to give concrete meaning to abstract rights
leave the content of rights at the mercy of unpredictable judicial discretion and
subjectivity
Since the constitutional formulation of rights is almost invariably abstract and the
rule of law demands certainty, the concern arises that enforcing the rule of law is at
best indifferent, and at worst inimical, to fulfilling rights
Proportionality analysis adds another layer of judicial subjectivity and discretion, and
thus indeterminacy and unpredictability, to rights adjudication. One court’s
specification of the content of a right does not bring finality and clarity to the matter,
because other courts may yet conclude that limitations of the right are justifiable
The “weight” that each judge attaches to a right and to a competing social objective
is nothing more than an intuitive and discretionary judgment of comparative value
Can the limitations analysis be de-moralised?
o Beatty – once a court determines that the objective of a government policy is
legitimate, the court need only conduct an empirical, fact-driven inquiry into
“whether there are better policy alternatives than the law the government
chose to enact”.
o The better policy is the one that achieves the policy objectives as well as or
better than others, with less intrusion of constitutional rights
o On this approach, the argument goes, courts will be able to resolve
limitations disputes with “correct” decisions “that can be verified empirically”
with little work left to be done by discretion or moral intuition
o India’s and Poland’s constitution includes expressly defined reasons for
limitation which may prove effective in eliminating moral reasoning from
proportionality analysis
Still need to undertake balancing exercise between rights
Carter v Canada
o Inquiry into whether the prohibition on physician assisted suicide was a
justifiable limitation on the section 7 charter right not to be deprived of
liberty and security of the person, except in accordance with the principles of
fundamental justice
o Oakes test is laid out sequentially, meaning that if the Court determines that
an impugned measure fails the LRM test, the Court will usually strike it down
without proceeding to consider proportionality in the strike sense
o LRM dependant approach operates more predictably because it purports to
minimise the role for subjective and unpredictable moral reasoning on the
part of judges
o Relied heavily on evidence from scientists, medical practitioners and others
as to whether the prohibition was in fact the less restrictive means of
protecting vulnerable people from being coerced to end their lives
Limits to LRM dependent approach?
o Only able to meet the objection from predictability as long as the first three
stages of the analysis always provide an answer, and remain uncontaminated
by subjective and impressionistic moral reasoning in doing so
o Courts continue to rely on balancing even when they eliminate a discrete
inquiry into proportionality in the strict sense
Saskatchewan (Human Rights Commission) v Whatcott
o Assessing the constitutional acceptability of a probation of hate speech
“involves balancing between freedom of expression and equality rights”
o The court concluded that the hate speech prohibition in question met the
LRM requirement because it was “one of the reasonable alternatives that
could have been selected by the legislation. It impairs freedom of expression
‘no more than reasonably necessary’”
o The court’s assessment of minimal impairment here includes an independent
conclusion on the limitation’s reasonableness: the LRM test is not sufficient
to reach a conclusion on proportionality, and even the least restrictive means
to achieve a social objective must be reasonable if it is to be upheld
o Shows that there is balancing throughout the four different stages of the
proportionality analysis
A model of proportionality that succeeds in eliminating a distinct inquiry into
proportionality in the strict sense, but still relies on the ad hoc and impressionistic
balancing that the objection from predictability abhors, offers no answer to the
objection from predictability
Proportionality in the strict sense just as predictable, intelligible, and transparent as
the other three inquiries of the standard model?
o Moral reasoning only problematic in systems which have an impoverished,
formalistic conception of the rule at law
o Normative congruence – where the rule book is silent, legal argument cannot
look only to the plain facts of how the law was positively enacted but must
look also to the principles that underlie or are embedded in the positive rules
of law. The judge is not free to legislate within the “open texture” of
imprecise or incomplete rules, but is rather bound to uncover the principle or
set of principles that best justifies previous decisions and provides an answer
o A rights limitation can therefore be shown to be justifiable to the extent that
it advances or protects the same fundamental normative values that rights
themselves exist to advance and protect
Incommensurability thesis – proportionality in the strict sense is an inherently flawed
mechanism for choosing between rights and the objectives served by rights
limitations because the value of rights and competing objectives cannot be
measured and directly compared
o The value of neither rights nor competing interests is easily quantified and
measured
o No common metric on which these measurements can be compared – do not
have mass and each right has qualitatively different normative properties.
Thus, it is futile to balance or compare against one another
o inquiry into strict proportionality becomes an exercise in balancing the
quantifiable benefit produced by the rights limiting measure against the
quantifiable harm of limiting the right – interest balancing
o benefits and harms that limiting a right would produce are qualitatively
different normative properties that are incommensurable
o no way to meaningfully compare the normatively different qualities of rights
and competing interests
o arguably, there are ways of comparing the value of these goods other than
on a common scale of measurement
o even if goods cannot be ranked on a cardinal scale according to a shared unit
of measurement, it may be possible to assign priority to these goods in an
ordinal ranking without having a quantified measure of their value
in constitutional settings judges do not have to be moral philosophers or ethical
conjurers to generate the values according to which rights and limitations are to be
weighed, or justify why a particular set of values should determine the preference in
each case. They need only refer to the statement of values in the constitution
o in South Africa, section 36 of the Constitution requires rights limitations to be
consistent with the commitment to “human dignity, equality and freedom” in
an “open and democratic society”
o in Canada, section 1 of the Charter requires limitations to be justifiable in a
“free and democratic society”.
o Germany describes human dignity as the core value informing the entire
constitutional project
Final stage of the proportionality test and certainty
o At the final stage of the proportionality test, the courts consider whether the
additional or marginal gains of a rights-limiting measure justifies the
infringement of rights. But there marginal gains have to be assessed relative
to alternatives: the status quo on the one hand and less restrictive
alternatives on the other. What the gains of a rights limitation are likely to
be, and what the likely gains of less restrictive alternatives would be, are
matters of empirical or at least probabilistic assessment. It is not possible for
a court to conduct the balancing inquiry without this information before it.
o The conclusions of the early stages of the standard analysis act as a
constraint on the balancing inquiry at the final stage – the room for moral
controversy is reduced
o The constraints that the empirical and probabilistic components of the
standard model impose on the balancing inquiry ensure that it is not a
freewheeling moral frolic that puts the entirety of a society’s commitments
to either rights or competing interests at the mercy of judicial discretion and
moral subjectivity
o Balancing as reasoning is a mechanism by which courts can investigate
whether an impugned rights limitation is justifiable, by asking if the limitation
can be shown to be congruent with normative commitments
Why do courts continue to be so strongly drawn to balancing and moral argument?
o The rule of law does not only serve moral autonomy: it also depends on
moral autonomy for its capacity to make law effective as a tool for ordering
behaviour in society
o The ongoing attraction of courts in the countries to balancing as reasoning
and proportionality in the strict sense suggests that these courts are
committed to this richer conception of the rule of law
o The fact that moral reasoning continues to exert its magnetic pull in the
paradigm constitutional democracies suggests a normatively rich conception
of the rule of law, one that connects the law to a political community’s moral
foundations, will continue to inflect constitutional jurisprudence in the
twenty-first century
Where a constitution happens to make a commitment to a set of fundamental normative
values (democracy, dignity, equality or openness, for example), the rule of law demands
that, just as a government must continue to charge the tax rates it sets, official conduct
must be congruent with this set of fundamental values
The jurisprudence in these countries reveals a normatively rich conception of the rule which
acknowledges the demand for congruence not just between official conduct and formal
rules, but also between official conduct and the deeply held normative commitments
expressed in each country as constitutional values
Class notes
Exam – in assessing X, Y is important. The Court explored this in Casey. It was explored in the
German context in …
Bring your own voice. Don’t be neutral – bring in your reasoned judgment – make your own
best argument – don’t say “could be argued” – can say “I”, “In my view” only “it could be
argued” if you don’t agree
Differences -
Hate speech allowed in US not in Canada
Physician assisted suicide allowed in Canada but no the US
Our job is to explain those differences
They use a similar structure of rights except for US
1) Has a right been limited?
2) Is there a justification? Often use proportionality (Canada, South Africa, ECtHR) or
balancing
US uses something that is arguably similar – when a fundamental right is at stake they use
strict scrutiny (or undue burden), when liberty interest they use rationale basis
It is a different beast or just a variation of what the world already does?
Proportionality as moral reasoning? Judges actually just engaging in a philosophical
argument or applied ethics through proportionality. There are other views
Constitutional law as autonomous. Don’t need philosophy to figure out what it says.
If you view it in this way you can’t use constitutional reasoning from other
jurisdictions
Stacey
Rule of law also about moral values which are enshrined in the constitution
He does not say that a society decides what is moral and puts in constitution. He
believes in free standing moral reasoning
Stacey seems to be critiquing inserting broad rights such as right to personality in the
constitution but then saying that proportionality analysis is constrained by normative
principles – where are these coming from if they are not included in the constitution
– he must be saying these values come from elsewhere
KM does not agree with Stacey – he does not think that proportionality should be
constrained by values in the constitution
o Aren’t the judges engaging in policy making in striking down laws?
o KM – no there is a sliding scale of policies which are proportionate those that
fall outside that sliding scale are unconstitutional
Why not philosophers? Why lawyers?
o KM more logical than philosophers
o i.e. lawyers as intellectual elite
o ES – lawyers closer to the ground, why not leave it to the people?
o KM – no not because closer to the ground because more logical
Could constitutional rights be stabilising in fragile democracies? Help stabilise – why only
rely on political struggles? If you have a reasonable amendment power in the constitution
Originalism – only what the founders would have thought if faced with the question
Living constitution
Middle ground? Ask in a more abstract way. Don’t ask would the founding fathers have
supported same sex marriage. Ask would the founding fathers have supported liberty?
Equality > liberty. Liberty interests should only be enshrined in constitution to the extent
that they protect democracy e.g. not free speech but freedom of political communication
Kennedy in Obergefell – history guides us but does not define our limits
US SC – conservative judges – deeply rooted history backward looking
US SC – liberal judges – we get closer and closer to understanding the true meaning of
liberty, what liberty requires – justice orientated, not necessarily looking to what people are
thinking on the ground
ECtHR – emerging consensus – looking to what people are thinking on the ground
Strict proportionality?
Simply political? When values clash (rights vs. public interest) political / moral
decision
Otherwise? Takes big question of how to weigh values and ask three separate
questions. There is some value in doing it that way