Proportionality and the Inevitability of the Local:: A Comparative Localist Analysis of Canada and Ireland

• Autores: David Kenny
• Localización: American journal of comparative law, ISSN 0002-919X, Nº. 3, 2018, págs. 537-578
• Idioma: inglés
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• Resumen

  • The principle of proportionality is held out as a truly international tool of constitutional law—a uniform process for assessing the legitimacy of restrictions of rights around the world. This Article critiques that viewpoint, using what the author terms a comparative localist approach: looking at the detail how proportionality is used in two broadly similar jurisdictions—Canada and Ireland—that use a linguistically identical version of the principle. It examines differences in the application of the individual elements of the test in both places, and broader differences not related to any one individual part of the test. The analysis reveals that the countries apply the principle in drastically different ways. The Article argues that despite the supposed consistency and uniformity that the proportionality test’s language and structure suggest, the application of the test is fundamentally and entirely contingent on local, contextual considerations and influences that will always change the way it applies. The test itself has very little fixed content. It suggests that both the international and domestic local scholarship about proportionality underestimates the fundamentality of this problem, thinking variability not to compromise the integrity of the concept of proportionality. This is because international scholarship is too general to see the extent of these specific problems at the local level, while local scholarship attributes these problems to national misapplication rather than problems with the test in general. Only with a comparative localist analysis can these problems be laid bare. The Article concludes by asking what we can make of proportionality in light of these observations, arguing that proportionality is a rhetoric that stitches together divergent practices, and considering whether it should be retained in light of that reality.