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The principle of proportionality

What is law? Is it what is on the books, or what is actually enacted and obeyed in a society? Or is law what must be enacted and obeyed, whether or not it is on the books, if things are to go right?

Bernard Schlink, The Reader (1995)


Both sunset clauses and experimental legislation break with the traditional paradigm of permanent legislation. Breaking with tradition does not need to be regarded as a ‘bad thing’. As Justice Holmes stated: ‘the past gives our vocabulary and fixes the limits of our imagination ... continuity with the past is not a duty. It is only a necessity’.[1] This ‘vocabulary’ may be used to assist judges in assessing whether legislative choices have been reasonable, but it should be complemented by an active search of facts.[2] Instead, in light of the lack of information and rapid technological and social developments, it might not even be reasonable to regulate a situation ‘forever’. Instead, sunset clauses and experimental legislation may be a proportionate choice, particularly as far as the limitation of freedom and property of citizens is concerned. Sunset clauses and experimental regulations will not always limit fundamental rights, but the choice to do so on a temporary and/or an experimental basis should pass a proportionality inquiry.

The importance of performing a proportionality assessment responds to the Dutch Council of State’s argument that experimental legislation should be regarded as a ‘last resort mechanism’.[3] Legislators should demonstrate that experimental regulations as well as sunset clauses are suitable, necessary and proportionate stricto sensu to attain a determined objective. This is far from being a specificity of these temporary legislative instruments: ‘proportionality of laws and judicial decisions belongs to the very core of justice and equity’; therefore, a ‘disproportionate legal rule is no law’.[4]

The idea of justice and proportionality are inseparable.[5] A proportionality test is particularly important when inequality concerns, such as the ones posed by experimental regulations, are at stake. As explained above, it is intrinsic to the nature of any experimental regulation to differentiate, but only proportionate differentiations can be considered lawful.

Since the principle of proportionality implies a highly casuistic assessment of circumstances, the analysis of this principle will remain limited. Once again, the focus of this analysis will be on experimental legislation due to legislative differentiation introduced by the latter.

  • [1] Max Lerner, The Mind and Faith of Justice Holmes: His Speeches, Essays,Letters, and Judicial Opinions ( Transaction Publishers, 1989) 35.
  • [2] David M. Speak, Living Law: The Transformation of American Jurisprudence in the Early 20th Century (Garland Publishing, 1987) 47: referring toJustice Brandeis’ demonstration of reasonableness in his brief filed in the contextof Muller v. Oregon, 208 U.S. 412 (1908). Brandeis built on the existing caselaw, but actively searched for empirical data and information from otherjurisdictions to demonstrate that the Oregon law in question was not unreasonable.
  • [3] See the Opinion of the Dutch Council of State in the context of the Reportof the Interdepartementale werkgroep experimenteerbepalingen, Het proberenwaard (23 May 2000), Bijvoegsel Staatscourant, 10 October 2000, no. 196.
  • [4] Aurelien Portuese, ‘Principle of Proportionality as Principle of EconomicEfficiency’ (2013) 19(5) European Law Journal 612.
  • [5] Adrienne de Moor-van Vugt, Maten en gewichten: het evenredigheids-beginsel en Europees perspectief (Schoordijk Instituut, 1995) (dissertation) 6.
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