Discretion and Deference
A final argument concerns the balancing stage of the proportionality test. It poses the question: ‘Who is doing—or should do—the balancing (judges or legislators)?’1 In Tsakyrakis’ opinion, for example, the aim of judicial review is to replicate rather than to supervise the balancing of the legislators, since judicial review should be ‘constrained by an overarching requirement of judicial deference’.2 This argument concerns the risk that, within a domestic competence structure, intensive judicial review undermines the task of the democratically legitimated legislators. In Beatty’s words:
This flourishing of a ‘judicialization of politics’ has come about without a satisfactory account having been provided for why so much power should be entrusted to a small group of lawyers who are unelected and virtually unaccountable to anyone but themselves.3
This is a widespread concern: Kahn argues that ‘judicial interference always threatens to appear as interference with the elected bodies of society’ and that a ‘balancing court will always appear as an uncertain usurper of the reins of power’.4 Wong claims that we would face a ‘usurpation of the legislative prerogative of parliament’ and ‘judicial legislation by the back-door’.5 Others argue that ‘an excessively interventionist approach to human rights is undemocratic to the extent that the judiciary imposes its own views over on Parliament’6 and that constitutional adjudication gained the status of a ‘competing legislation’.7 Böckenförde has famously criticized that with the balancing approach, constitutional rights would become the ‘highest principles of the entire legal system’.8 As a consequence, the legislature would lose its autonomy, since its function would be reduced to merely establishing by means of statutory law what has already been decided by constitutional law. Hence, we would face a ‘shift from parliamentary legislative state to constitutional adjudicative state’.9 With an eye on the ECHR, Greer has brought forward a variant of this argument when he said that:
unlike national constitutional courts, the European Court of Human Rights lacks the constitutional authority in both these contexts—rights v. rights and rights v. collective goods—to set out the various relationships in terms of formal legal rules.10
These arguments concern the difficult role of constitutional adjudication in a democratic society.11 Constitutional adjudication typically has the power to invalidate unconstitutional acts of parliament. This participation in legislation gives rise to the difficult question of how intense judicial review may be. Following Alexy’s concept of argumentative representation, we are convinced that judicial review per se is justified in a democratic society.12 One has to distinguish between the role of the judiciary in international law and in domestic law. In this chapter, we focus on the latter.
A good example of the question of judicial deference in international law systems is the jurisprudence of the ECtHR. Contrary to Greer’s argument that it is ‘lacking constitutional authority’, the Court itself has stressed that pursuant to Article 32(1) of the Convention it is indeed competent for the autonomous interpretation of the Convention.13 It is part of this constitutional task to determine what a right means vis-à-vis conflicting interests. Therefore, the Court does indeed set out the relationships among various competing interests by means of more specified legal rules, amounting to a set of precedents. Since the Convention has a constitutional character,14 the Court’s function is comparable to the function of a constitutional court.15
Notwithstanding its constitutional character, the ECtHR is well aware of the problem of the subject of balancing. It grants the Member States a ‘margin of appreciation’.16 It ensures the Member States a certain freedom of action. The exact application of the margin of appreciation depends on the ‘context of the particular case’17 and ranges from extreme deference to close scrutiny.18 Since various factors are taken into account to determine the scope of the margin of appreciation, it is difficult to predict how the margin of appreciation will affect the proportionality test and thus the outcome in any particular case.19
In particular, it is unclear what role judicial deference plays within the proportionality test.20 To resolve the problem, a balance must be struck between strict judicial deference and a practical and effective protection of human rights.21 To guarantee an effective fundamental rights protection, constitutional courts must have, in general, the power to review the acts of the legislature. In certain cases, however, they have to be deferential and have to grant the legislature a certain discretion22 which limits the intensity of judicial review. In this general sense, the language of ‘discretion’ and ‘judicial deference’ can be used interchangeably. Wider legislative discretion and enhanced judicial deference both have the effect of reducing the intensity of review. However, Rivers has shown that the two are not true counterparts.23
It follows from these considerations that the proportionality test needs to be supplemented by a doctrine of judicial deference24 to ‘reconcile both democracy and rights in a way that optimizes each’.25