11 - Is There a Doctrine of Proportionality in Asia (or Anywhere)?

Summary

This Chapter questions whether there is a “doctrine” of proportionality. By “doctrine,” a way of dealing with problems across a range of problems. Using the country studies presented in this book, the chapter identifies a number of reasons for thinking that there is – and perhaps cannot be – such a doctrine. First, the components of proportionality are elements in any reasoned explanation for an outcome in a constitutional case; as a result, “hints” of proportionality analysis in cases not using its structured version may not in fact illustrate proportionality analysis at all. Second, courts allocate different analytic methods to different domains; as a result, proportionality analysis and categorical analysis co-exist in the system as a whole. Third, something like a categorical analysis is likely to appear at the “less restrictive alternatives” stage of proportionality analysis. Finally, even systems committed to proportionality analysis might find themselves eventually adopting some categorical rules as a means of achieving better results overall than proportionality would produce directly. The Chapter concludes with some observations about the role that structural, educational, and political contexts play in the choice between categorical and proportionality analysis.