Proportionality in modern regulatory states confused about priorities: Judges like, but do not comply with academic doctrines

This chapter assesses the proportionality principle in European case law and legal thought. The focus is on the different interpretations of the principle in courts as opposed to those defended in literature, mainly by those who work in the slipstream of Robert Alexy. The chapter prioritises a judicial perspective over an academic one when assessing proportionality. It leans towards an inductive approach and shows that courts often lack a strict structure in their legal reasoning. Academic literature suggests a fully matured doctrine with a structured test that is applied quasi-systematically by courts with only small variations. But the formulation in literature of the components of the test is often more normative than descriptive. Judgments that do not deal with the proportionality test in a structured way are abundant but disregarded by scholars as poorly motivated. A broad historical approach is proposed as a background for a deeper understanding of the rise and pretended use of the principle in Europe. The argument is structured as follows. It begins by discussing the European struggles with giving clear priority to rights ( section II.A ). Rights in Europe are prima facie trumps (section II.B), in line with a tradition of paternalism and priority of the modern state where experts with expert-language become central characters (section II.C – D). The use of proportionality hints is a way for judges to secure recognition as experts ( section V.C ) and to play a role of peacemaking or truce-keeping in a world without shared first moral principles (section VI)