reasoned assessment of what might be considered adequate, appropriate, available, or
attainable, in context. Less frequent, although certainly apparent, are the sorts of brightline rules that are said to make rights-adjudication and rights-enforcement a more
constrained interpretive exercise. 7 Even the negative obligations attached to economic
and social rights, such as the prohibition against forced eviction,8 or denial of emergency
medical treatment,9 may countenance some form of limitation, mediated by standards.10
In this context, one would expect that the most disciplined sort of standards-based
reasoning in rights adjudication – that of the sequenced and structured proportionality test
or protocol, often named “proportionality analysis”11 – would have become prevalent for
economic and social rights. For its proponents, proportionality analysis is integral to a
new “global model of constitutional rights”, 12 providing a “key to the door of an
international community of judges” 13 for disciplining and constraining the inevitable
7
For a very useful articulation of this difference, in the American context, see Kathleen M. Sullivan, The
Supreme Court, 1991 Term -- Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22-123
(1992); for a more cross-doctrinal distinction between rights and principles, see ROBERT ALEXY, A THEORY
OF CONSTITUTIONAL RIGHTS 45-110 (2002). I discuss the parallels been conceptions of rules versus
standards, and rights versus principles, in KATHARINE G. YOUNG, CONSTITUTING ECONOMIC AND SOCIAL
RIGHTS 128 (2012).
8
E.g., U.N. Committee on Economic, Social & Cultural Rights, General Comment No. 7: The right to
adequate housing (Art.11.1): forced evictions; see also Sth. Afr. Const., § 26(3).
9
E.g., U.N. International Convention on the Protection of the Rights of All Migrant Workers and Members
of Their Families, art. 28; Sth. Afr. Const., § 27(3).
10
For broader analysis of the different institutional instantiations of such limitations, see Young, supra note
7, ch. 4.
11
Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitutionalism, 47 Colum.
J. Transnat’l L. 73 (2008). While I define proportionality analysis more fully in Part II, infra, it is worth
stating at the outset that proportionality analysis typically follows a first stage of inquiry, in which a prima
facie infringement of a right is demonstrated, and a second, in which the aims of the identified measure,
and principles of its suitability, necessity, and balancing or proportionality in the narrow sense, are
established. B. Schlink, Proportionality, in THE OXFORD HANDBOOK OF COMPARATIVE CONSTITUTIONAL
LAW (M. Rosenfeld & A. Sajo, eds., 2012) 721. See further text accompanying infra note 69.
12
KAI MÖLLER, THE GLOBAL MODEL OF CONSTITUTIONAL RIGHTS 277-314 (2012)
13
MOSHE COHEN-ELIYA & IDDO PORAT, PROPORTIONALITY AND CONSTITUTIONAL CULTURE (2013).
2