A Wobbly Balance? A Comparison of Proportionality Testing in Canada, the United States, the European Union and the World Trade Organization
Attaran, Amir, University of New Brunswick Law Journal
The law and the newspapers are full of instances in which two different, conflicting societal interests are being traded off--or balanced--against one another by the courts. Every democracy is faced with such choices, and in a given moment the choice may be simple (the decision to suppress publishing military secrets in wartime), or complex (the decision to suppress anti-war protests). Choices of this kind--constitutional choices--are so identified with the protection of civil rights that in the vernacular, the adjective "unconstitutional" is understood as intolerable state action encroaching on the rights of a person. Tests over constitutionality are among the most celebrated matches between a person and the state, generating rich public discourse. For instance, do the courts go too far when they protect the rights of unpopular persons, such as the right of Nazis to parade though a neighborhood of Holocaust survivors? (1) The answer, of course, depends on how courts balance competing interests.
However, in the last several decades, balancing has ceased to be the exclusive preserve of national human rights law. International trade courts, applying the General Agreement on Tariffs and Trade (GATT) (2) and other European Community treaties, now use proportionality testing to balance national interests and the objectives of free trade. Yet, among the thorny questions of the free trade debate whether jobs are lost, environmental or health standards weakened, or developing countries fairly treated, etc.--it is rarely asked whether trade courts balance competing interests appropriately. Public attention is focused on the results of trade adjudication, or the language of the trade agreements, but seldom the process of how trade courts balance competing interests.
Why does something as subtle as the process of balancing matter? Plainly, it matters because the process can render the law highly malleable. The same court, in the same country, faced with the same substantive law, can reach one judgment, and, shortly thereafter, reach its polar opposite. Upon close inspection, the only real difference may be how the court balanced the competing interests. The rise and fall of the "separate but equal" doctrine of racial segregation in the United States is a famous example of this and suggests that to understand the balancing process it is best to examine a few illustrative examples. (3)
This study is a cross-jurisdictional survey of judicial balancing and proportionality testing--the primary juridical tool which courts use in balancing. This study has two purposes. The first purpose is expository: to describe in detail the legal principles and judicial application of balancing and proportionality testing in four different tribunals (the Supreme Court of Canada; the United States Supreme Court; the ECJ; and the panels of the WTO). This exposition sets the stage for the paper's second, discursive purpose: to propound theories of how the tribunals can articulate superficially similar proportionality tests, yet ultimately achieve vastly different results.
PART I--WHAT ARE BALANCING AND PROPORTIONALITY?
Balancing is a judicial exercise aimed at reconciling two legitimate and conflicting interests, by ranking them hierarchically, and determining the permissible extent of conflict between them. The object of any balancing exercise is to arrive at a proportional result: affirming the superior interest, yet allowing the inferior interest to coexist to the extent that it remains compatible. The balancing inquiry may be approached in different ways, but it always requires the judge to take certain logical steps: (4)
(1) There must be some ascription of weight or value to the interests concerned,
(2) A determination must be made as to whether certain interests may be traded off to achieve other goals. Some interests (e.g. the right to life), may be so highly valued that we would not compromise them for the sake of other interests (e. …