Andrej Lang, Review of Afroditi Marketou, Local Meanings of Proportionality

It is a recurring feature in legal scholarship on proportionality to document the spread of the doctrine across the globe. This sketch of global diffusion is frequently combined with sweeping assertions about the foundational character of proportionality, claiming it to be “a foundational element of global constitutionalism” (at 3),1 “the central concept in contemporary constitutional rights law” (at 3),2 or “one of the most successful legal transplants in the second half of the twentieth century” (at 5).3 Not surprisingly, a stream of scholarship has recently emerged in critical reaction to this successful diffusion narrative. Take the example of David Kenny’s comparative study about Canada and Ireland in which he argues that proportionality is used in “drastically different ways” in those jurisdictions.4 Similarly, Cohen-Eliya and Porat and Bomhoff have separately contrasted balancing in the United States and Germany, finding that despite superficial commonalities, balancing is tied to deeply distinctive constitutional cultures and, accordingly, conducted very differently by US and German courts.5 This critique of the global proportionality script raises essential questions about proportionality from the perspective of comparative legal studies—is there truly a global model of proportionality? Are courts from different jurisdictions even doing roughly the same when they invoke and apply the proportionality doctrine? How should the discipline of comparative law approach the transnational phenomenon of proportionality against this background? Afroditi Marketou’s monograph Local Meanings of Proportionality, based on her doctoral thesis written at the European University Institute in Florence under the supervision of Bruno de Witte, forms part of this critical “comparativist turn” in proportionality scholarship. Analyzing the evolution and meaning of the doctrine in the three jurisdictions of France, England, and Greece, Marketou begins and ends her book by emphasizing that proportionality has very different local meanings. Her central argument is that the practices of proportionality in those jurisdictions constitute a new type of exceptionalism from what she dubs the global model of proportionality. Even though courts applied and even embraced the doctrine, and despite commonalities in the terminology used, they would do so in a manner that deviates fundamentally from the global model and reveals distinct patterns of local legal discourse (at 254, 362). The book is divided into three main parts: the first traces the incorporation and spread of proportionality in the three jurisdictions, purporting to “question the dominant narrative of the spread of proportionality as a successful transplant” (at 34–5), the second contextualizes the reception of proportionality by connecting it to the intellectual histories of public law in France, England, and Greece, and the third is dedicated to the European integration dimension as all three legal orders are subject to the jurisdiction of the Court of Justice of the European Union and the European Court of Human Rights. The core project is to identify and to explain the local meanings of proportionality and to trace their evolution (at 360). Inspired by cultural and ethnographic studies of law, Marketou focuses on the interrelationship between proportionality and domestic legal culture, tracing how the latter shapes the local meaning of the former and how the former as a legal transplant impacts the latter. Local Meanings of Proportionality’s standout contribution is the detailed and contextualized analysis of proportionality in three jurisdictions that have only received little attention in the global debate, filling a gap in the literature on proportionality. While this debate has largely been centered around the usual suspects such as the German Federal Constitutional Court and the Canadian Supreme Court, the courts in France, England, and especially Greece are rarely mentioned. Taking on not only one but three jurisdictions in which the role of proportionality has—at least from the perspective of comparative legal scholarship—been understudied, and producing a noticeably knowledgeable and rich account of each jurisdiction is an impressive feat in itself. Beyond this, however, Marketou’s inquiry into how proportionality was first received, how its meaning evolved over time, how different legal actors appropriated proportionality to pursue their legal and political projects, and how proportionality shaped domestic debates about rights, formality, judicial power, legislative prerogatives, and European law offers fascinating insights into these three legal cultures. Marketou does an excellent job of connecting her analysis of the role of proportionality to the intellectual histories of public law in the analyzed jurisdictions. Local Meanings of Proportionality sets forth a thick, insightful description of how proportionality was incorporated in the French, English, and Greek legal orders tracing the debates it triggered, the evolutions of the doctrine in the case law, and the changes to public law traditions it propelled. She sketches skillfully how proportionality in England served as a revolutionary tool for breaking with long-dominant Diceyan formalism centered around parliamentary sovereignty, idealization of the political process, and skepticism of constitutional rights and judicial review and for transforming the UK constitutional order into a public law system with a pervasive fundamental rights culture and strong courts that do not shy away from making value-laden judgments. She describes how proportionality in France was conceived of as a scientific legal enterprise carrying an “aura of value-proof objectivity and scientific correctness” (at 143) but failed, in her view, to bring about decisive expansions of fundamental rights and judicial powers as courts continued to show excessive deference to legislative value choices as exemplified by the judicial restraint towards the state of emergency declared after the 2015 terrorist attacks (at 69). She portrays how proportionality in Greece was initially enthusiastically embraced by Greek lawyers as a foreign legal transplant that was anticipated to modernize and to Europeanize Greek public law but has increasingly been viewed more critically by Greek lawyers and has failed to result in a compelling paradigm of constitutional rights and judicial review (at 363–4). Marketou draws the potent generalization on the basis of three case studies that the spread of proportionality depended on and flourished under conditions of (i) epistemological optimism with regard to proportionality as a legal framework for rationally and scientifically examining justifications of public decisions, (ii) institutional faith in the capacity of judges of making justifiable value judgments, and (iii) openness towards European integration (at 140–1). When proportionality rose to prominence in England, France, and Greece during the first decade of the twenty-first century, those conditions seem to have been by and large present in all three jurisdictions but it appears based on Marketou’s account that especially a lack of institutional faith in a more expansive judicial role in France and Greece has derailed a more substantive and rights-protective use of the framework. An additional factor to consider that may help to explain the different trajectories of proportionality in England on one side and in France and Greece on the other side is the ramifications of institutional design of judicial power—with one single apex court in England and several specialized apex courts in France and Greece. Institutional competition among different apex courts in one jurisdiction may make it harder to develop an attractive and coherent proportionality framework. Finally, an intriguing observation that can be drawn from Marketou’s insightful description is that legal and political actors engaged in the debates about the use of proportionality—whether they promoted or opposed it—acutely perceived the doctrine as a legal technology for the empowerment of judges. Their standpoints towards proportionality seemed to depend significantly on the (activist or restrained) role—especially vis-à-vis the legislature—they deemed appropriate for judges in their respective legal order. Although Marketou’s methodological choice for a cultural study of proportionality brings many benefits and results in a rich and contextualized comparative constitutional study, it does—at least in the manner she spins her narrative—generate two difficulties. The first difficulty relates to her choice of tertium comparationis. To tell the appealing story of how her three case studies debunk the myth of the spread of the global proportionality model, she constructs a strawman (at 35). Marketou’s narrative is that much of the scholarship on proportionality would presume the existence of a global model of proportionality based on German constitutionalism and Alexy’s theory of constitutional rights, describing “proportionality as a method for the optimal realisation of constitutional principles” (at 37). She argues against this alleged presumption, noting that judicial application of proportionality in France, England, and Greece “seldom follows exactly the proportionality model described by Alexy and his followers” (at 135). However, this ostensible global model of proportionality does not serve well as a yardstick for evaluating the French, English, and Greek proportionality practices. It even appears that the very supposition of a global model runs counter to Marketou’s own epistemological claim that law is deeply embedded in local culture. On the one hand, a global model of proportionality does not exist in comparative judicial practice. In fact, there is a strong case to be made that Alexy’s model does not even properly reconstruct the case law of the German Federal Constitutional Court as the latter uses a more restrained approach than balancing in the proper sense when it strikes down a statute.6 Moreover, a thorough comparative analysis of the judicial practice on proportionality reveals that despite striking and important doctrinal similarities across jurisdictions each jurisdiction develops its own distinct version of proportionality.7 What can be identified, instead, are different types of proportionality review or degrees of intensity on a spectrum with which apex courts subscribe to proportionality, ranging from fully fledged frameworks that habitually follow a structured proportionality analysis like in Germany, Canada, Israel, and South Africa to limitations analysis frameworks that only partially and occasionally incorporate proportionality analysis, which may apply to France and Greece, to only sporadic references to proportionality. But even among apex courts that have fully subscribed to using proportionality there is not one global model; instead, there are different approaches to proportionality, and even in the case law of a single court there exists, especially over time, some variation and inconsistency in the application of proportionality.8 On the other hand, it is doubtful that Alexy and his followers would claim that a significant number of courts follow Alexy’s theory of proportionality. This normative stream of scholarship is grounded in legal philosophy and primarily aims at justifying proportionality and balancing as a judicial method for reasoning constitutional rights cases. In other words, it does not by and large argue what judicial practice is but what judicial practice should be. The expectation that this theory of proportionality would seek to correctly describe judicial practice is therefore based on a categorical misunderstanding. The second difficulty concerns Marketou’s insistence on a stark difference between the local meanings of proportionality in France, England, and Greece that is not substantiated by a systematic empirical approach. Given that the cover claims the book to be an empirical study and that Marketou in the book makes “a plea for a hint of empiricism” in the debates on proportionality (at 9), one might expect at least an empirically grounded overview of the judicial practice that would provide the reader with a better sense of how courts in those jurisdictions actually apply proportionality. Although Marketou’s instructive analysis makes clear that she has carefully analyzed the relevant proportionality case law, Local Meanings of Proportionality provides no such overview and little doctrinal details. At the same time, some sections in the book suggest that, since the early 2000s, apex courts in all three jurisdictions have regularly conducted a structured proportionality analysis (at 65–6, 92–7, 125–6). Although Marketou acknowledges at various points throughout the book that proportionality has resulted in “convergence among legal systems” (at 365) and that “the narrative of the success of proportionality is not completely lacking a factual basis” (at 135), she does not seem to be after detecting similarities or identifying particular doctrinal approaches. She is right to highlight an unfortunate tendency among some legal scholars to press jurisdictions into the global proportionality script in an almost nonchalant manner only because a high court has superficially employed the language of proportionality and to argue instead for paying closer attention to the “particularity and contingency of proportionality” in different local contexts (at 9). But this should not exclude also searching for similarities. It appears that an important reason for accentuating difference lies in Marketou’s cultural approach to proportionality that is based on Legrand’s cultural theory of comparative law, which is suspicious of convergence between legal orders, emphasizes the benefits of cultural diversity, and views legal transplants as an impossibility because their transplantation into a different legal order necessarily transforms them into something different.9 Relying upon Legrand as a starting point for the comparative inquiry almost includes a bias in favor of difference that can be detected in parts of Local Meanings of Proportionality, and that could have been countered with an open-minded empirical investigation. For example, Marketou seems to criticize the disposition of Greek lawyers to embrace foreign legal transplants in the hope of modernizing the domestic legal order and to readily displace valuable local knowledge in the process (at 247–53). But is it intrinsically blameworthy to adopt foreign approaches to rights protection? It would depend, at least as I see it, on a careful comparison of the comparative advantages and disadvantages of the local model and the foreign model—an analysis that Marketou does not conduct. Moreover, her linking of the judicial practice of proportionality with the different intellectual histories of public law in England, France, and Greece, albeit highly instructive and interesting, also tends to accentuate difference because the public law cultures of the three countries clearly are very different. A separate question is, however, whether those differences in legal culture necessarily translate into very different applications of proportionality or whether the common pedigree of the doctrine may lead judges across jurisdictions to require justifications for rights intrusions and to engage, at least on a more general level, in a similar type of inquiry. As a result of the combined use of the inherently vague concept of legal culture and the absence of systematic empiricism, the book does not give an answer to this question, leaving at least this reader to wonder whether there are—notwithstanding important differences in style of reasoning, intensity of review, and regularity of application—not more similarities in the proportionality-guided judicial inquiry than the author finds. The dichotomy between similarity and difference arguably pervades the field of comparative law and whether one sees similarity or difference may well depend upon the “epistemological glasses” through which a person looks when comparing two (or more) legal objects. But there is a strong argument to be made that comparative legal scholars should seek to search for both similarities and differences. In any case, Local Meanings of Proportionality remains an important contribution to the global debate on proportionality. Marketou has written a rich, insightful, well-contextualized, and provocative account of how proportionality was “transplanted” with more and with less success into the legal orders of France, England, and Greece—three jurisdictions that have been understudied in proportionality scholarship despite the doctrine assuming an important role there. Her cultural study of proportionality not only provides us with valuable insights into the manifold ways by which proportionality is received by different local actors and legal cultures, but also teaches us about the ramifications on domestic debates about rights, formality, and judicial power and the necessary epistemological and institutional conditions for the proportionality doctrine to spread.

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