13th Biennial Meeting - Penn State Law

TEXAS INTERNATIONAL LAW JOURNAL
VOL. 42:371
We shall make one caveat. "Global" principles of administrative law need to be
reflected carefully, especially when transplanting national or European
constitutional concepts to the WTO level." Analogies and transfers must, in each
case, reflect the specific legal and political system in which they operate, in particular
since legal principles from a variety of national legal orders seem to resemble each
other. Lawyers from different backgrounds may approach the same principles with
different concepts in mind and may speak about the same legal phenomenon using
different terminology: "[a]pparently identical words may have a different meaning
and apparently different words may have the same meaning." 65 ' In any case, one
must not disregard the different forms of national constitutional and international
law traditions which shape the thinking about principles-what they are as well as
what they are based upon. In the European context, Jtirgen Habermas rightly
warned that:
the same legal principles would also have to be interpreted from the
perspectives of different national traditions and histories. One's own
tradition must in each case be appropriated from a vantage point
relativized by the perspectives of other traditions, and appropriated in
such a manner that it can be brought into a transnational, Western
European constitutional culture.'
The concepts of proportionality, necessity, balancing, and reasonableness are
widely used in many different jurisdictions. As we attempt to show throughout this
article, their use and connotation varies from author to author, and from jurisdiction
to jurisdiction. It is often difficult to reflect on one particular concept since it may be
understood in many different ways. Proportionality, for instance, may generally be
understood as a very strict test of review or a more relaxed and deferential test of
review. Our own approach is influenced by the classical three-step proportionality
test, developed in continental European legal thinking.
B. Introducing Proportionality
The principle of proportionality has many different facets. It is regularly
invoked but its function, constituent elements, and scope of application often remain
elusive. Proportionality is not a standardized legal concept and to a large extent
depends on the legal regime within which it is used. The simplest formula to explain
proportionality is the prohibition on using a "steam hammer to crack a nut, if a
nutcracker would do., 67 This formula is quite illustrative but not very helpful in
addressing complex legal question that arise in connection with the proportionality
test.
Characterizing proportionality at a very general level, one of its key functions is
to define the relationship between the state and its citizens, resolving conflicts of
64. Giacinto Della Cananea, Beyond the State: the Europeanization and Globalization of Procedural
Administrative Law, 9 EURO. PUB. L. 563, 563 (2003); John M. Jackson, Fragmentation or Unification
Among International Institutions: The World Trade Organization, 31 N.Y.U. J. INT'L L. & POL. 823, 829
(1999).
65. Van Hoecke, supra note 9, at 10-11.
66. HABERMAS, supra note 24, at 500.
67. R v. Goldstein (1983) 1 W.L.R. 151,155 (UKHL)(Eng.).
HeinOnline -- 42 Tex. Int'l L.J. 382 2006-2007