The Debatable Universality of the Proportionality Test and the Wide-Scope Conception of Fundamental Rights

Abstract

Whether human rights are universal or not has been the subject of much debate among legal experts, but major controversy has surrounded rights substance, not their structure. Authors discuss whether freedom of belief or gender equality, for example, are ubiquitous, without considering, however, that having a right may mean significantly different things in different legal systems, depending on how rights are structured. This essay addresses the arguable universality of a certain structure of rights; it does so by tackling the worldwide spread of proportionality and the conception of fundamental rights that underlies it in the principles-theory variant. Alexy has formulated a strong thesis on the universality of a certain conception of rights (and principles). He claims that proportionality is conceptually necessary in all minimally developed legal systems because it derives from the very structure of principles (or fundamental rights) and vice-versa. This strong thesis contrasts with others that attempt to justify why proportionality is close to becoming a lingua franca in constitutional decision-making. The weak thesis holds that judges ought to have recourse to proportionality because it enhances the effectiveness of fundamental rights. The moderate thesis holds that proportionality may indeed be necessary in a legal system, but only if certain conditions are present there. These conditions are the wide-scope conception of fundamental rights and its equivalent in which respects constitutional principles: the optimization thesis. I assume that there are viable alternatives to them, for not all theorists relate principles to optimization, and in countries like the U.S., which is not an obvious example of an underdeveloped legal system, rights are conceived of narrowly. This study posits, firstly, that there is no evidence that proportionality is empirically necessary; secondly, that the weak thesis raises difficult problems of prognosis; and thirdly, that a conceptual necessity, as the one Alexy implies between rights and proportionality, must presuppose a normative necessity, which is contingent on certain premises. As a result, the moderate thesis holds true, and the widespread model of rights endorsed by Alexy is not conceptually necessary everywhere. This essay will contribute for the debates on the universality of legal concepts by shedding light on the important choices members of a legal community and participants in legal discourse have to make when framing or interpreting their constitution.