Conclusion
The operation of proportionality is an asymmetrical one in the so-called “global model”
of constitutional rights – it is a test that has not been invoked in the prominent economic
and social rights cases usually associated with this model. Partly, this is because the
“margin of appreciation” that attends a proportionality inquiry is more likely to be
triggered under present conceptions of economic and social rights. Nonetheless, the
proportionality principle – that “the graver the impact of the decision upon the individual
affected by it, the more substantial the justification that will be required” – inflects the
standard of reasonableness that has been developed for economic and social rights
adjudication. This paper suggests that the reasonableness standard, which follows a
methodology of contextualized rights-evaluation, rather than the separate rightsidentification and justification-of-limits associated with the proportionality test, can
nevertheless be both protective, and constraining, of justiciable rights. By avoiding the
“containment” doctrines that can effectively remove all strength from a purportedly
stronger intensity of review, the use of a proportionality-inflected reasonableness may yet
deliver greater rights protection.
35
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