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TMI BlogStandards of Proportionality & AlternativesX X X X Extracts X X X X X X X X Extracts X X X X ..... nd that legal adjudication should be rule-based rather than principle-based. They argue that this provides legal certainty by virtue of rules being definitive in nature. In response, jurists in favour of balancing contend that neither rules nor principles are definitive but rather prima facie. Therefore, both rights and legislations/policies are required to be balanced and realized to the optimum possible extent. This jurisprudential clash is visible in the various forms and structures of adoptions of proportionality. Generally, two models can be differentiated from works of jurists. 1) Model I Firstly, the traditional two stages of the means end comparison is applied. After having ascertained the legitimate purpose of the law, the judge as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible in the legal and factual scenarios, as they exist. All stages of the proportionality test therefore seek to optimize relative to what is legally and factually possible. The rational connection and necessity prongs of the proportionality test are applicable to factual possibilities. T he balancing stage optimizes each principle within what is legally possible, by weighing the relevant competing principles. Alexy proposes the weight formula , which quantifies competing values (rights of individuals) and interests (objective of legislation/policy) by reducing them to numbers. It is a method of thinking about conflicting values/interests. W1.2 = (I1 . W1 . R1 ) / (I2 . W2 . R2 ) W1.2 represents the concrete weight of principle P1 relative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmensurable values; (ii) it fails to create predictability in the legal system and is potentially dangerous for human rights; and (iii) conversely, it is equally intrusive from the perspective of separation of powers. Three-stage Proportionality This model proposes limiting the proportionality enquiry to its first three prongs, i.e., minus the balancing stage. Von Bernstorff argues against ad hoc balancing based on two principal reasons: (i) ad hoc balancing fails to erect stable and predictable standards of human rights protection, allowing even the most intensive infringements of civil liberties to be conveniently balanced out of existence when the stakes are high enough; and (ii) the lack of predictability leads to a situation where ever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where an alternate measure is only accepted as less restrictive when they prove to be as effective as the measure under challenge. David Bilchitz has also proposed that other alternatives must have both characteristics equal realization of the purpose and lesser invasion/restriction on the right in question. A stricter evaluation of evidence becomes crucial at the necessity stage for an objective standard of review, in contrast to ad hoc balancing. In Canada for instance, the onus of proof is on the person seeking to justify the limit, which is generally the government. The standard of proof is the civil standard or balance of probabilities. Where scientific or social science evidence is available, it will be required; However, where such e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he importance of constitutionally permissible purpose of the prohibition; and Finally the judge applies the appropriate level of scrutiny so as to determine whether the challenged law is justified as reasonably appropriate and adapted to achieve that purpose in a manner compatible with the maintenance of the constitutionally prescribed system of government The test is similar to some prongs of the proportionality test. However, it is more rule oriented instead of being standard/principle oriented. Australia While proportionality is the predominant doctrine in Australia, this alternate test is applied by a few judges. These judges raise concerns about the application of a test of structured proportionality and suggest that it was best unders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es s / Wednesbury Principles A standard of unreasonableness is used for the judicial review of a public authority's decision. A reasoning or decision is unreasonable (or irrational) when no person acting reasonably could have arrived at it. This test has two limbs: (i) The court is entitled to investigate the action to check whether the authority has considered and decided on matters which they ought not to have considered, or conversely, have refused to consider or neglected to consider matters which they ought to have considered. (ii) If the above query is answered in favour of the local authority, it may be held that, although the local authority has ruled on matters which they ought to have considered, the conclusion they have arriv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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