This dynamic is not surprising. For proportionality proponents, for example, positive obligations are the quintessential area for affording deference, and the belief that the legislature’s own balancing is worthy of respect.109 But this is, of course, based on the assumption that the legislature has accorded due respect to economic and social rights, to which it is held democratically accountable – assumptions that may hold in the traditional welfare states, in so-called “normal” circumstances of stability and solidarity, but are far less tenable in conditions of fiscal disruption and crisis, ideological disagreement, legislative dysfunction, and internationally controlled fiscal policy – conditions which are far more likely to hold, in most places.110 Given the inevitability of this dynamic, it is curious that proponents of proportionality have not reached a more developed position on where, when, and how, deference should be applied.111 The correct level can depend, according to Mattias Kumm, on such broad factors as the political, social and cultural context; the complexity of the policy questions involved, the structure of the processes and institutions that have generated the decision that is under review, and the structure of the judicial institution.112 Most of these factors would be weighted towards the adoption of deference in economic and social rights review. Even the negative obligations that flow from economic and social rights – such as 109 ALEXY, supra note 7. See, e.g., how these assumptions are treated by so-called “activist” tribunals in South Africa, Colombia, and India: CONSTITUTIONALISM OF THE GLOBAL SOUTH (Daniel Bonilla Maldonado ed., 2013). 111 For a call for “a clear principled basis for deference” in relation to the necessity enquiry, see David Bilchitz, Necessity and Proportionality: Towards A Balanced Approach? in REASONING RIGHTS: COMPARATIVE JUDICIAL ENGAGEMENT 41, 48 (Liora Lazarus et al. eds., 2014). But see Matthias Klatt & Johannes Schmidt, Epistemic Discretion in Constitutional Law, 10 Int’l J. Const’l L. 69, 71 (2012) (seeking to outline an approach to discipline what they term as “the discretion of classification”). 112 Kumm, supra note 51, at 163. 110 26