Proportionality Balancing and Global Constitutionalism

Abstract

Over the past fifty years, proportionality balancing – an analytical procedure akin to “strict scrutiny” in the United States – has become the dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part I proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts II and III provide a genealogy of proportionality, trace its global diffusion, and evaluate its impact on law and politics in a variety of settings, both national and supranational. In the conclusion, we discuss our major finding, namely, that proportionality constitutes the doctrinal underpinning for the expansion of judicial power globally. ! Indeed, judges who adopting it position themselves to exercise dominance over both policymaking and constitutional development.