Rethinking Proportionality with a Rubber Band and Two Wooden Pegs

Abstract

In rights adjudication, what is commonly known as the fourth step of the proportionality test involves a weighing of the costs and benefits of the law, analogous to balancing weights in the scales of justice. This article argues the fourth step should be replaced with a new test of effects disproportionality to be applied at the rights engagement stage. If the impact on rights is shown to be arbitrary or grossly disproportionate, no justification in the legitimacy of means is possible, and the claimant is entitled to a remedy. Limits on rights of less severity can still be justified by the state satisfying the means proportionality test. Shorn of the conceptual problems with balancing, this new approach conceives of proportionality, both in terms of means and effects, as analogous to wrapping a rubber band around two wooden pegs to achieve a harmonious tension.