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Schlink talks legal principles

John Cameron | Friday, April 8, 2011

German law professor Bernhard Schlink discussed the principle of proportionality at the Eck School of Law Thursday as part of a forum titled, “Proportionality in Constitutional Law: Why Everywhere but Here?”

Schlink is a former judge and author of “The Reader,” a novel recently adapted to film in 2008.

Proportionality, a principle of legal reasoning that seeks to balance individual rights with government entitlements, presents the legal profession with both a set of tools and a number of challenges, Schlink said.

The forum, sponsored by the Nanovic Institute for European Studies, focused on the degree to which the legal systems around the globe utilize the principle of proportionality in the interpretation of laws.

Schlink said the principle requires analyzing the justification of government intrusion on civil rights based on three criteria.

“In law, the principle of proportionality assumes prominence in those cases where specific laws commanding or prohibiting specific means, or to be more precise, actions that serve as means, are lacking,” he said. “If you pursue an end, use a means that is helpful, necessary and appropriate.”

Schlink illustrated the principle’s applicability through a “classic German law school example” of a lame man seeing a child picking apples from his tree. The lame man’s only means of stopping the intrusion is shooting the boy.

“The means of shooting the child down is helpful and necessary to reach the ends of protecting his property,” he said. “But we can easily agree that it is not appropriate or in balance.”

The legal theory of proportionality originated when German courts limited police discretion in protecting the public, Schlink said.

“The law was understood to give the police wide discretion in fighting dangers of all sorts … Once the ideas of individual rights began to prevail, the courts started to institute controls over the police,” he said. “The police were entitled to use only the means that were necessary and appropriate.”

Despite its German origins, Schlink said no especially unique characteristic of German law contributed to the emergence of the principle, which is now prevalent in courts throughout Europe and much of the world.

“There’s nothing inherently German about the roots of the principle of proportionality, nor is the introduction of the principle to the other constitutional contexts a transfer of German principle,” he said.

Rather, Schlink said, it is a tool used in dealing with a challenge faced by every legal system.

“The principle is a response to a universal legal problem — once it’s understood that the authority’s reach is extensive, but also limited, without specifying the limits, the principle of proportionality serves as an instrument to reconcile” the lack of clearly defined limitations of government legal authority, he said.

Schlink said the principle is flawed.

“The first problem is that of insufficient or ambiguous information. It is sometimes impossible to determine whether the means works and whether it is necessary,” he said. “The balance of rights, interests and values entailed in the analysis of appropriateness is unavoidably subjective.”

Richard Garnett, associate dean of the Law School and professor of law, said the principle is prevalent in American law, but it is less explicit than it is in European law.

“There’s a tendency not to use the word ‘proportion’ in American constitutional law,” Garnett said. “But it’s everywhere, just the same.”

While many American laws may seem absolute, such as the First Amendment right to free speech, Garnett said proportionality affects the flexibility with which the legal system defines “speech.”

“We kind of cheat. If we have it in our head that this is an instance where the government should be permitted to act, we often simply declare that what’s being regulated isn’t actually the freedom of speech,” he said. “It’s obscenity, it’s incitement, it’s defamation.”

Notre Dame Law Professor Emeritus Donald Kommers praised the principle’s flexibility.

“If competing principles are involved [in the German system], they must not only be reconciled, but optimized,” he said. “This kind of balancing is not in the American Supreme Court’s toolkit.”

Kommers said the principle allows the legal system to honor several competing, but valid, values.

“This is not a zero-sum game, as it often is in the American situation,” he said.