Proportionality: Comparative Law Lessons
![handle is hein.journals/judire12 and id is 31 raw text is: [2007] JR
Proportionality: Comparative Law Lessons
Tom Hickman
Blackstone Chambers
Introduction
1. Despite the central importance of the doctrine of proportionality in modern public law,
the English courts have not yet given much attention to the structure of the propor-
tionality test, and certainly not by comparison with the courts in some other jurisdic-
tions. This article examines in detail the case law of two such jurisdictions: Canada and
Israel. The Supreme Courts in these countries have established a far more developed
jurisprudence on proportionality, from which important lessons can and should be
drawn.
2. This article therefore has three objectives. First, it makes a case for the consideration of
comparative case law on proportionality. Secondly, it seeks to set out and explain the
jurisprudence of proportionality applied by the Canadian and Israeli Supreme Courts.
In part the reason for so doing is that no such discussion exists in readily accessible
form for academics and practitioners in this country. Thirdly, this article draws general
conclusions from the Canadian and Israeli jurisprudence for the development of the
proportionality doctrine in domestic law.
Significance of the Canadian and Israeli jurisprudence
3. Lord Bingham has stated that there is a need for [s]ome caution in relying on
comparative case law in the domestic context. He gave two reasons for this. He
observed that such authorities are the product of differently worded enactments and
he indicated that domestic courts should take their lead from Strasbourg.' With
respect, there is always a need for some caution in considering comparative jurispru-
dence. However, it is suggested that the foreign case law on proportionality is espe-
cially relevant and important for a number of reasons. First, it will be seen that the
doctrine of proportionality is a judicial creation which is largely independent of the
particular words of the constitutional provisions that justify its application. Lord
Bingham's first reason for special caution is not applicable. Secondly, the doctrine of
proportionality refers to the process of analysis which, unlike the meaning of substan-
tive rights, is not greatly influenced by local moral or political beliefs. There is only
need for particular caution where a particular proportionality analysis is closely tied to
features of the right under consideration. Thirdly, the doctrine of proportionality has
the character of an international doctrine that owes its origin and development to
cross-fertilisation between the jurisprudence of different judicial bodies across the
world, both civilian and common law. It is therefore peculiarly appropriate to consider
comparative approaches to proportionality. Fourthly, this is not an area in which the
Strasbourg Court provides much helpful guidance, as we shall see. Lord Bingham's
second reason for caution is also therefore not apposite. Fifthly, it is suggested that this
is an area in which domestic law is sadly under-developed and its growth calls for
comparative sustenance.
1 Sheldrake v DPP [2004] UKHL 43 [2005] 1 AC 264 at [33].](ViewImageLocal?handle=hein.journals/judire12&div=7&collection=journals&method=preview&ext=.png&size=3)
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Proportionality: Comparative Law Lessons
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