Protecting Rights in the Policy Process: Integrating Legal Proportionality and Policy Analysis

This paper provides an integrative analysis of legal proportionality and policy analysis, and identifies the inherent potential of integrating the proportionality principle in policy analysis for enhancing the protection of rights in the policy process. Our analysis entails three key recommendations: (1) Mandating the inclusion of a rights-impact criterion in policy analysis in order to increase the likelihood that the three proportionality tests will be addressed; (2) The professional norm of considering several distinct alternatives serves the normative requirement of the necessity test and facilitates the mitigation of rights restrictions through the comparison and modification of the alternatives; (3) Requiring policymakers to present the factual basis for the undesirable phenomenon in the course of judicial review of the policy goal. Such integration of policy analysis and proportionality can streamline the consideration of fundamental rights in the policy-making process and consequently increase their protection. Adopting these practical measures may substantially assist courts in identifying ways to implement judicial review, while respecting the discretion of policymakers. Finally, these proposed practices are expected to fine-tune the incentive structure of policy-makers for conducting quality policy analysis while protecting human and civil rights.