Stephen Gardbaum (University of California, Los Angeles (UCLA) – School of Law) has posted Positive and Horizontal Rights: Proportionality's Next Frontier or a Bridge Too Far? (Proportionality: New Frontiers, New Challenges, Vicki Jackson and Mark Tushnet eds., Cambridge University Press, 2016, Forthcoming) on SSRN. Here is the abstract:
This chapter seeks to demonstrate that the well-known geographical spread of proportionality has not been matched by a growth in its jurisprudential scope. Specifically, the actual practice of rights adjudication around the world reveals that even those constitutional courts most committed to proportionality are reluctant to employ it in positive and horizontal rights cases.
To help see this clearly, the chapter first develops a more sharply defined account of proportionality than is frequently employed, in which (in Weberian terms) it operates only in the realm of instrumental, and not in that of value, rationality. This account explains why not all forms of reasonableness review or balancing are actually or necessarily instances of proportionality analysis. Rather, proportionality incorporates a specific conception of reasonableness (reasonableness as proportionality) and a particular type of balancing, and cannot simply be equated with more generic versions of either.
Armed with this more bounded sense of proportionality, the chapter proceeds to show that the German and South African constitutional courts, as well as the European Court of Human Rights, largely eschew proportionality analysis in their adjudication of positive and horizontal rights cases. The interesting question is why. In exploring it, the chapter suggests that, in addition to fairly familiar legitimacy/separation of powers concerns about socio-economic rights enforcement, there may be both conceptual and normative tensions in applying proportionality outside the more conventional rights context in which it has triumphed. In particular, judges may intuit the moral appropriateness of a form of "human rights exceptionalism," although of a different and less abstract nature than the one previously canvassed and rejected in the literature. The chapter concludes by considering its implications for both the theory of the "global model of rights" and the further growth of proportionality in such countries as the United States.