Necessity or balancing: The protection of rights under different proportionality tests—Experimental evidence

Abstract

Despite its global proliferation, there is no standard formulation for proportionality analysis. The result is debate over the optimal formulation and application of the doctrine and the ramifications of adopting different versions. A subset of this debate relates to which element of the doctrine provides rights with greater protection against competing public interests. Although this dispute is essentially empirical, arguments on the matter remain strictly theoretical. This study presents the first experimental analysis of the effects of specific subtests of proportionality analysis on the level of protection afforded to rights. We find strong evidence that applying proportionality in terms of the necessity test—whether there are less restrictive means—results in greater protection of rights in policy decisions than does applying proportionality in terms of the strict proportionality test—balancing the benefit against the harm. The findings suggest that including a necessity component within the proportionality doctrine, and emphasizing it as a central stage of the analysis, can enhance the protection of rights in decisions regarding rights-restricting policy.