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The chapter presents a comparative analysis of the application of proportionality in the six jurisdictions analysed in the book: Germany, Canada, South Africa, Israel, Poland, and India. The analysis focuses on the relationship and division of labour between proportionality's subtests and the function of the multi-stage doctrine as a whole. Examining two central attributes of the proportionality doctrine in the theoretical literature – the sequential structure of the analysis and the conception of a single dominant element – the chapter demonstrates how several of the analysed courts deviate from a strictly sequential model and present a tendency towards an integrated approach to proportionality. Descriptively, some potential causes for the gravitation of courts towards an integrative model of proportionality are offered. Normatively, the argument is made that an integrative use of proportionality analysis is also desirable: recognizing the connections between the stages and allowing feedback between them fully exploits the analytical potential inherent in proportionality analysis. This type of proportionality analysis best reflects the role of the court in ensuring that rights are limited only when justified, and provides the most positive guidance to policy-makers.
Proportionality in Action presents an empirical and comparative exploration of the proportionality doctrine, based on detailed accounts of the application of the framework by apex courts in six jurisdictions: Germany, Canada, South Africa, Israel, Poland and India. The analysis of each country is written and contextualized by a constitutional scholar from the relevant jurisdiction. Each country analysis draws upon a large sample of case law and employs a mixed methodological approach: an expansive coding scheme allows for quantitative analysis providing comparable and quantifiable measurements, which is enriched by qualitative analysis that engages with the substance of the decisions and captures nuance, contextualizing the data and providing it with meaning. The book concludes with a comparative chapter that synthesizes some of the most interesting findings. Focusing on deviations of the practice of proportionality from theory, the authors conclude their argument in support of an integrated approach to the application of proportionality.
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