Proportionality Review in Administrative Law

COMPARATIVE ADMINISTRATIVE LAW, 2d ed., Susan Rose-Ackerman, Peter L. Lindseth & Blake Emerson, eds., Edward Elgar Publishing, 2017

Penn State Law Research Paper No. 25-2016

25 Pages Posted: 12 Sep 2016 Last revised: 16 Nov 2016

Date Written: September 7, 2016

Abstract

At the most basic level, the principle of proportionality captures the common-sensical proposition that, when the government acts, the means it chooses should be well-adapted to achieve the ends it is pursuing. The proportionality principle is an admonition, as German administrative law scholar Fritz Fleiner famously wrote many decades ago, that “the police should not shoot at sparrows with cannons”. The use of proportionality review in constitutional and international law has received ample attention from scholars in recent years, but less has been said about proportionality’s role within administrative law. This piece suggest that we can understand the differences in how proportionality is used in the administrative law of different jurisdictions in terms of three principal axes of variation. Systems differ with respect to how extensively proportionality is employed, how intensively review is conducted, and how discursively courts present their analysis. Notwithstanding the substantial cross-national variation in how proportionality is used, there are underlying regularities that lend support to the claim that proportionality amounts to a master concept of public law.

Keywords: administrative law, judicial review, proportionality, intensity of review, discretion, courts, comparative law

Suggested Citation

Mathews, Jud, Proportionality Review in Administrative Law (September 7, 2016). COMPARATIVE ADMINISTRATIVE LAW, 2d ed., Susan Rose-Ackerman, Peter L. Lindseth & Blake Emerson, eds., Edward Elgar Publishing, 2017, Penn State Law Research Paper No. 25-2016, Available at SSRN: https://ssrn.com/abstract=2836264

Jud Mathews (Contact Author)

Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

HOME PAGE: http://https://pennstatelaw.psu.edu/faculty/mathews

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