The Proportionality Standard and Constitutional Culture: A Comparative Analysis of Rights Adjudication in Canada and the French Republic

Abstract

It has been suggested that the migration of proportionality as a standard of constitutional review is bringing about a degree of convergence in rights norms across common and civil law jurisdictions. While scholars have noted its potential to shape rights norms in legal systems into which it is incorporated, few have analysed the ways in which proportionality is affected by the constitutional culture in which it is received. This thesis is a comparative analysis of the application of proportionality in Canada and the French Republic. It sheds light on the extent to which the operation of that standard is affected by constitutional culture; that is, by interpretive perspectives and modes of reasoning prevailing in a given jurisdiction. It isolates the ways in which the standard is modified, both consciously through the efforts of judges to give meaning to its requirements and unconsciously through the normative presumptions they bring to bear.