Proportionality:
 Rules and Adjudication

Vicki C. JACKSON

I am happy to be here with all of you today at Kadir Has University Law School. I want especially to thank the Dean of Kadir Has, Professor Ali Güzel, for his generous welcome and Professor Olgun Akbulut, who invited me to give this talk, and with whom I had enjoyable conversations about proportionality last year when he was a visiting scholar at Harvard Law School.

In this lecture, I will take as a given that, constitutions seek to both empower and limit government to promote freedom, equality and justice. Proportionality has been viewed as an essential element of justice since at least the time of Aristotle. The principle of proportionality is implicit in the constitutional design of the U.S. Constitution and of many others both in the aim to prevent arbitrary government behavior towards individuals and in the aim of having a well-balanced government. Indeed, proportionality as a goal is implicit in any constitution that aims to produce justice by limiting as well as empowering government.

But recognizing proportionality as a general principle of constitutional government does not necessarily mean that the method of achieving proportionate decision making is through judicial review or only through judicial review. Legislatures and executive actors also have obligations to act proportionately. So, I want to say that, everyone in government has this obligation. What, then, is the role for judges in implementing the constitutional value of proportionality?