"To speak of human rights is to speak of
proportionality. It is no exaggeration to claim that proportionality has
overtaken rights as the orienting idea in contemporary human rights law and
scholarship. Proportionality has been received into the constitutional doctrine
of courts in continental Europe, the United Kingdom, Canada, New Zealand,
Israel, and South Africa, as well as the jurisprudence of treaty-based legal
systems like the European Court of Human Rights, giving rise to claims of a
global model, a received approach, or, simply, the best-practice standard of
rights adjudication. Even in the United States, which is widely understood to
have formally rejected proportionality, some argue that the various levels of
scrutiny adopted by the US Supreme Court are analogous to the standard questions
posed by proportionality. As proportionality scholars are well aware, some of
the early literature on balancing and rights is American, with special reference
to the First Amendment. Notwithstanding proportionality's popularity, there is
no consensus on its methodology. Much less does the use of a proportionality
doctrine guarantee consensus on substantive rights questions. What the principle
of proportionality promises is a common analytical framework, a framework the
significance of which is not in its ubiquity (a mere fact), but because its
structure influences (some would say controls) how courts reason to conclusions
in many of the great moral and political questions confronting political
communities. As a framework, proportionality analysis is superficially
straightforward, setting out four questions in evaluating whether the limitation
of a right is justifiable. A serviceable - but by no means canonical
