PROPER PROPORTIONS OF LAW: JUSTIFYING DEMOCRATIC CREDENTIALS OF PROPORTIONALITY ANALYSIS IN CONSTITUTIONAL ADJUDICATION by Iryna Ponomarenko A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF Master of Laws in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (Law) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) October 2013 © Iryna Ponomarenko, 2013 ABSTRACT When scholars speak of proportionality, they most likely speak of the multi- pronged analytical frame for norm-based argumentation — which it certainly is. Indeed, be it the Canadian Oakes test or European “fair balance,” proportionality is deemed to be “the best possible” discursive technique to achieve “a positive partnership” between conflicting constitutional rights and laudable legislative objectives. However, there is more to proportionality than a formulaic framework: as canvassed throughout the thesis, there exist notorious puzzles regarding the concepts and vocabularies involved in the proportionality rhetoric; there is likewise a need to critically analyze the assumptions and presuppositions underlying modern proportionality discourse. Last but not least, the very invocation of proportionality into rights adjudication calls for doctrinal — as well as legal and democratic — justification. From the European Union to Canada, from South Africa to Brazil, constitutional jurisprudence is currently filled with proportionality formulaic parlance, whereas — and this last point is of particular significance — very few Constitutions explicitly speak of proportionality, not to mention the multi-pronged tests. In this thesis, I take a wider view of the matter and propose a new paradigm for bridging the epistemological gap between the constitutional need to reconcile competing private and public interests, on one hand, and invocation of proportionality formula into constitutional jurisprudence, on the other. ii PREFACE This thesis is original, unpublished, independent work by the author, Iryna Ponomarenko. iii TABLE OF CONTENTS Abstract................................................................................................................................ ii Preface ................................................................................................................................ iii Table of Contents................................................................................................................ iv List of Tables ....................................................................................................................... v List of Figures ..................................................................................................................... vi Acknowledgements ........................................................................................................... vii Introduction .........................................................................................................................1 Chapter 1: Proportionality Defined ........................................................................... 6 1.1 A Case for the Genealogical Reconstruction of Proportionality .................................... 7 1.2 Proportionality: Tracing the Historical Origins ........................................................... 15 1.3 The Nature of Proportionality: What's in a Name? .................................................... 29 1.4 Form and Substance: Deconstructing Proportionality into Its Basic Elements ........ 48 Chapter 2: Proportionality Debated ........................................................................ 57 2.1 Contested Nature of Proportionality: Frame of Reference ......................................... 57 2.2 Proportionality as a Rights Limitation Tool: A Trade of Rights for Results? ............ 67 2.3 Proportionality as a Weighing Exercise: A Fine Balance ........................................... 78 2.4 Proportionality as a Conceptualized Balancing Framework ...................................... 97 Chapter 3: Proportionality Defended .................................................................... 112 3.1 Is Proportionality Possible Here?: Principles for a New Proportionality Debate ..... 112 3.2. Are There Right Answers in Law?: Setting the Scene for a Discussion .................. 120 3.3. Anti-Archimedean Defense of Proportionality ........................................................ 124 Conclusions ..................................................................................................................... 139 References ....................................................................................................................... 145 iv LIST OF TABLES Table 1. The structure of the proportionality test in comparative perspective ................ 53 v LIST OF FIGURES Figure 1. Architectonic of the proportionality test............................................................ 41 vi ACKNOWLEDGEMENTS Mastering the art of balance is a sine qua non of many human endeavors, be it making plans for family weekend, crafting governmental policies about controversial values, or finding the closing words that would strike at the emotional heart of a serious academic project. As I add the final touches to this research, I recall how on my first day of law school I went to the university bookstore and incidentally bought the Nicomachean Ethics by Aristotle — it caught my eye while I was waiting at the checkout. In his seminal treatise, Aristotle argues that ethical virtues are achieved by striking a proportionate balance between the opposing states: the courage means holding a mean position in one's feelings of rash and fear; the virtue of generosity lies in between wastefulness and stinginess, and so forth. “What a nonsense!” said 18- year-old I and closed a book with a slam. In those days, like every teenager, I wholeheartedly rejected the very idea of compromise. It took me six long years to learn that life is not just black and white — it contains shadows. It is fuzzy, unpredictable, and more often than not offers no ready answers. In life, there are no winners and losers, there are likewise no universal rules about how to live well — finding the golden mean in any given situation requires weighing all relevant circumstances and exercising our unique capacity to reason. And so does law. I am deeply indebted to my thesis supervisor at UBC, Professor Joel Bakan, who has encouraged me to undertake the project of exploring how law maintains a state of equilibrium between the opposing truths — proportionality principle in constitutional adjudication. Professor Bakan is a person to whom I will never be vii grateful enough for he gave me something more than benefit of his invaluable advice and feedback while writing this thesis — he provided me with gentle guidance and wisdom that constantly fueled my love of discovery. I also owe my second reader, Professor Robin Elliot, a great debt for cultivating appreciation for linking theory and practice and Professor Mary Liston for encouraging clear thinking about the fuzzy issues. Last and most certainly not least, deep gratitude is due to my family and friends for their patience, good humor, and love. viii ... so a state, by adjusting the proportion between the highest, lowest, and intermediate classes, as if they were musical notes, achieves harmony.1 Cicero, Republic INTRODUCTION When scholars speak of proportionality, they most likely speak of the multi-pronged analytical frame for norm-based argumentation2 — which it certainly is. Indeed, be it the Canadian Oakes test or European “fair balance,” proportionality is deemed to be “the best possible” discursive technique to achieve “a positive partnership” between conflicting constitutional rights and laudable legislative objectives. However, there is more to proportionality than a formulaic framework: as will be canvassed throughout the thesis, there exist notorious puzzles regarding the concepts and vocabularies involved in the proportionality rhetoric; there is likewise a need to critically analyze the assumptions and presuppositions underlying modern proportionality discourse. Last but not least, the very invocation of proportionality into rights adjudication calls for doctrinal — as well as legal and democratic — justification. From the European Union to Canada, from South Africa to Brazil, constitutional jurisprudence is currently filled with proportionality formulaic parlance, whereas — and this last point is of particular significance — very few Constitutions explicitly speak of proportionality, not to mention the multi-pronged tests. In this thesis, I take a wider view of the matter and propose a new paradigm for bridging the epistemological gap between the constitutional need to reconcile competing 1 The remainder of the quote reads as follows: “What, in the case of singing, musicians call harmony is, in the state, concord; it constitutes the tightest and most effective bond of security; and such concord cannot exist at all without justice.” (In Marco Tulio Cicerón, Niall Rudd & Jonathan Powell, The Republic and The Laws (Oxford University Press, 1998) at 58.) 2 Consider, for instance, an approach to defining proportionality adopted in recent treatise of Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012.) 1 private and public interests, on one hand, and invocation of proportionality formula into constitutional jurisprudence, on the other. I open Chapter 1 with the genealogical