THE NOTION OF A PROPORTIONATE BALANCE: A BOOK REVIEW: Francisco J. Urbina, A Critique of Proportionality and Balancing.

• Author: Sun, Kerry
• Position: Book review

The twin metaphors of proportionality and balancing are ubiquitous in Western legal culture today. Every first year Canadian law student, for example, is taught that the final step of the Oakes proportionality test requires the court to weigh the deleterious and the salutary effects of the rights-limiting measure. (1) Indeed, it has been observed that constitutional law lives in an age of proportionality. (2) But the inquisitive law student, not yet accustomed to taking this notion for granted, might be tempted to ask: What considerations, exactly, fall to be weighed on each side of the scales of justice? (3) How is this balancing process supposed to work? Why is it desirable, in legal disputes over rights, to achieve a relation of proportionality at all?

Francisco J Urbina's new book engages with these questions masterfully. (4) The debate between the enthusiasts and sceptics of proportionality in rights adjudication has spawned volumes of academic writing. (5) Urbina, himself a committed critic of the doctrine, here builds on his earlier work and that of other critics. (6) The value of the book is that it offers a general critique of what he calls "the new orthodoxy in human rights law." (7) The treatment of the topic is not tethered to particular decisions, legal systems, or doctrinal manifestations, but to critiquing the concept of proportionality as such. (8) To do so, Urbina adopts a dialectical approach, taking the most influential theories of proportionality as his argumentative target. As he explains, the fairest way to critique the logic behind proportionality is to confront the main accounts of the idea, "as it is presented by its most sophisticated proponents." (9)

We learn, in fact, that there is not one account of the proportionality test, but two: the maximization account of proportionality and proportionality as unconstrained moral reasoning. Part I of the book critiques the first account, in which the stages of the proportionality test are conceived as "a doctrinal tool aimed at maximizing the interests, values, or principles at stake in the case." Part II engages with the account of "proportionality as a doctrinal tool that allows judges to engage in open-ended moral reasoning, unconstrained by legal sources." (10) Each account has a distinctive conception of balancing: "For one account, balancing consists in a commensuration of rights, interest, values or principles; for the other, it means assessing the reasons in favour and against a particular measure." (11) Analytical clarity demands a bifurcated approach. Too often, the difference between these accounts is confused by both defenders and critics of proportionality, lending it a shapeshifting quality that makes it "seem at times to be a moving target." (12) Part III, the last chapter of the book, outlines a constructive argument through an alternative understanding of human rights as legal categories.

For Canadian lawyers and legal scholars, the force of Urbina's critique is especially salient in light of recent cases where the notion of a "proportionate balancing" was essential to the outcome. (13) Most prominently, in TWU 2018, the majority of the Court emphasized that the Dore/Loyola framework is a "robust" proportionality analysis. The test, it held, asks whether it is reasonably possible to give effect to Charter protections "more fully" given the statutory objectives of the administrative decision-maker. (14) This formulation of the framework attempts to bring it closer to the conventional s 1 analysis, which requires the Charter right to be minimally impaired and the benefits of the law to outweigh its deleterious effects. (15)

The first, maximization account of proportionality that Urbina discusses will be familiar for this reason. On this account, the basic goal of the court is "to determine whether the loss for the right is somehow compensated by gains for another right or the public good." (16) Any limitation to a protected right "must be justified by reference to gains on some other interest, principle, or value." (17) That underlying logic, Urbina suggests, is "what is distinctive about proportionality itself." (18) The first three steps of the Oakes justification test-important objective, rational connection, and minimal impairment-ensure the purely instrumental rationality of the impugned law, and establish what the relevant considerations at stake are on each side of the scales. The final step, proportionality stricto sensu, consists in weighing the scales and determines whether the trade-off between the two sides is worthwhile or optimal. (19) That is, it asks whether the impugned law or decision maximizes the interests, values, or principles at stake. Even though the right is diminished by an interference, does the interference produce a "net-gain" in the overall balance of interests? (20) From this perspective, one readily sees that the metaphor of balancing is synonymous with the aim of maximizing something.

Notable proponents of proportionality have embraced this account, viewing the purpose of the doctrine as to maximize some relevant property, whether it is the realization of constitutional principles (Robert Alexy), (21) preference satisfaction (David Beatty), (22) or marginal social importance (Aharon Barak). (23) On each theory, if the governmental measure fails to produce a net gain in the relevant property, then it is defective. Put differently, "the benefits of the impugned law," however such benefits are defined, must always be "worth the cost of the rights limitation." (24) While Urbina provides a useful account of the major proponents' theories, the book helpfully sets aside the unessential minutiae in favour of a critique of their common form and reasoning.

As Urbina observes, the logic of maximization explains two characteristic features of the doctrine. Once again, the insights are highly relatable to the Canadian experience. First, the maximization account orients the proportionality test toward the final step (proportionality stricto sensu), which ends "the inquiry with a quantitative comparison of gains and losses, to which all the previous stages are ordered." (25) Thus, in R v KRJ, for example, the majority favoured a greater role for this final step, designating it as "the essence of the proportionality inquiry." (26) Second, the maximization account is not concerned with "whether the measure is a legitimate means," but simply with the outcome of the quantitative comparison of costs and benefits. (27) It was this constraint that led Brown J to dissent in the same case, where the constitutionality of retrospective prohibition measures on sexual offenders was at issue. The legitimacy of retrospective punishment is a question of "the means by which [punishment] is imposed," but the conventional Oakes analysis is unsuited to resolve this question since it "considers the proportionality between a legislative objective and the Charter-infringing effects resulting from its pursuit, not the choice of means that, by itself, constitutes a Charter infringement." (28) The quantitative calculus animating the maximization account insists that what matters in rights adjudication is ends, not the legitimacy of the means by which those ends are achieved.

This conception of proportionality, however, "presupposes that there is a common property that captures what is relevant in the elements compared." (29) In Chapter 3, Urbina confronts this central presupposition of proportionality analysis, arguing that "it is not possible to perform a quantitative comparison between gains and losses for rights or the public good by means only of rational criteria (as distinct from feelings, conventions or other sub-rational criteria). This is the incommensurability objection." (30) The incommensurability objection "is possibly the most underestimated challenge to proportionality reasoning." (31) Despite being well known, (32) it is infrequently taken seriously, not because the objection is misguided but because it is misunderstood.

When a court resolves a rights dispute using proportionality analysis, it adjudges that one side of the scales outweighs the other. That is, the court makes a choice about the acceptability of some impugned measure, and this choice is thought to be reasoned insofar as the winning side has more of whatever is being weighed. (33) Urbina's core thesis is that this choice is, in reality, an arbitrary one. Its method of quantitative comparison is "senseless, in the way it is senseless to ask whether a lot of happiness is more than a moderate amount of blue paint." (34) Take the factual context of TWU 2018 as an example. True, one may intelligibly identify both "significant benefits to the relevant statutory objectives" and a "minor... limitation on the Charter rights at issue." (35) Yet, Urbina argues, this comparison-large advancement of the governmental objective, small detriment to the protected right-is meretricious. It is a mistake to treat it as a reason justifying the limitation, for the adjudicator is still choosing "between realising (more or less) of one principle, and realising (more or less) of a different principle." (36) Unless the two sides of the scale can be shown to share a common denominator, there is no reason to attribute any significance to the comparison.

Urbina cogently argues that proportionality theorists have failed to articulate such a denominator. Here, the book responds to counter-arguments and intuitive examples marshalled against incommensurability, such as purported situations of "large/small trade-offs" and the fact that we must choose between incommensurable values in everyday life,such as work or play and financial security or health. With regard to the prevalence of incommensurability in everyday life, individuals may rationally choose to trade off one value for another in...