In celebrating proportionality analysis, commentators have suggested that it can provide a
“flexible, but generally more substantive interpretation of positive rights, avoiding both
the Scylla of a minimum core approach and the Charybdis of a mere reasonableness
test”.120 Yet South African commentary suggests a different operation of proportionality:
“proportionality-inflected reasonableness”, as a compromise position. This approach
addresses the concerns of weakness within reasonableness review, while avoiding the
self-defeating containment doctrines that limit the reach of proportionality analysis in
economic and social rights cases, especially those involving positive obligations. A
greater attention to the excessive impacts on rights experienced by the most vulnerable
allows for a more robust integration of the principle of proportionality into economic and
social rights review.
Nonetheless, the question remains as to whether a proportionality-inflected
reasonableness travels well, beyond our setting of South African constitutional law. Just
as one comparative lesson of economic and social rights adjudication is that standardsbased, apparently weak-form adjudicatory postures can (perversely) produce more rightsprotective results than strong form, muscular or managerial adjudication; 121 another
comparative lesson is the contingency of this insight. The ability of weak-form review to
deliver positive outcomes can depend on a series of contextual factors, including legal or
constitutional culture; function or dysfunction on the part of the executive and legislature
(and public perceptions of the same); vitality and clout of rights-claiming social
120
121
KLATT & MEISTER, supra note 74, 108.
Tushnet, supra note 93.
30
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