Xin Dai* and Yun-chien Chang**
[Editor’s Note: this is a rejoinder, from the latest issue of ICON, by Xin Dai and Yun-chien Chang to two replies to their article, The Limited Usefulness of the Proportionality Principle.]
We appreciate the two insightful replies authored by Professor Anne Peters and Professors Cristóbal Caviedes and Francisco J. Urbina. Both replies acknowledge that the proportionality principle (PP) has its shortcomings but reject our proposal that cost-benefit analysis (CBA) does better what proportionality purports to do. In this rejoinder, we briefly address key issues raised by these replies in order to bolster the case for CBA as a better procedure than PP for legal analysis in many, if not all, institutional contexts. Our core message is that even in the constitutional review context, where not all considerations should be taken into account by courts, PP is still not the most ideal decision-making tool.
- Quantification is never required but is usually helpful
CBA requires comprehensive balancing but not necessarily quantification of values, which both replies view as implausible and meaningless. As Profs. Caviedes and Urbina rightfully suggested, we could have spelled out that by CBA we referred very generally to the type of rational, consequentialist, all-considered decision-making procedure. The critical superiority of CBA over PP, as we have argued in the original essay, is that CBA enables decision-makers to “balance all relevant considerations,” which is what many proponents believe that PP does (it does not). The major advantage in making decisions by first identifying all thinkable pros and cons (with or without quantification) is that such a procedure helps overcome the human tendency of attending to only a subset of relevant factors when making difficult decisions. A structured decision procedure such as PP, as we explained, reinforces exactly such a tendency and, as a result, is a crippled, under-inclusive CBA.
That said, CBA in a narrower, technical sense is indeed usually performed with quantification (or even monetization). We disagree, however, that quantification of values, even fundamental ones, necessarily renders CBA inferior to purportedly qualitative balancing methods like PP. When decision-makers need to balance multiple values on the different sides of the same scale, the major contribution of quantification is not about putting on price tags per se but creating a unified measurement system that simply allows the balancing to be conducted, explained, justified, and then audited and critiqued in a transparent and coherent manner. By contrast, one must question how useful an analytical tool Alexy’s Weight Formula could be if, as Prof. Peters implies, it is never intended to operate by assigning numerical values to the variables included therein.
It is not our claim, therefore, that with numbers, CBA ensures analytical certainty, whereas the qualitative PP is less determinant in reaching decisions. Instead, by requiring the use of a common measurement system, quantified CBA forces the decision-makers to reveal and elaborate clearly each quantitative choice made regarding the values being balanced against each other. Such a disciplinary effect of quantification is even more conducive to “a culture of justification” that Prof. Peters argues is a key virtue of PP. We therefore see no reason to conclude that, as the replies suggest, CBA informs affected persons, policymakers, and constitutional courts any less than PP.
2. PP does balancing, but not so well
Both replies note that one strand of critique against PP is about its being less protective of fundamental rights, which according to certain moral theories must be afforded categorical protection and take precedence over competing interests, such as social welfare. In the original essay we took an agnostic stance towards such absolutist right theories. Our position is that whenever there is a societal consensus that certain rights must trump other interests, PP is unnecessary: Why balance in the first place? That, in fact, is also why we focused on examining the three-prong version of PP: The “legitimate aim” test, included in the otherwise popular four-prong version, has little to do with balancing. While mostly a superfluous “checkpoint” in practice, provided that the “legitimate aim” test became more stringent, it would simply reduce PP to a categorical rule.
Without making the extreme case that PP is fundamentally not about balancing, however, both replies indicate that its constrained balancing procedure is superior to CBA because the latter leads to “illiberal” results that PP somehow consciously avoids. The argument appears to be that by not engaging in comprehensive balancing, PP values rights more than CBA does. For argument’s sake, we assume here that neither reply intends to claim that balancing rights against other considerations is per se “illiberal”; where CBA fails, in their view, is likely its giving rights inadequate weight when balancing.
But our proposal for CBA does not presume a specific scheme for assigning weights to competing rights and values. Such weighting is of course inherently subjective, and conventional CBA may have incorporated less than adequate normative considerations when weighing rights. For us, this is the real challenge for CBA to be used in constitutional review. (Note that in our original essay we did not advocate using the narrow version of the CBA in constitutional review.) Nonetheless, the presence and extent of the problem that inadequate weight is given to rights can be quite easily identified in a CBA; it can also be addressed by weight adjustment based on any desired or accepted ethical rules in the way practiced in social welfare analysis. That is, normatively empowered CBA can be easily designed and implemented – with reasoning and justification.
Viewed in this light, even if PP may have an edge in readily incorporating normative weighting of rights, it is still flawed in other important dimensions. We have shown that cognitive bias, “liberal” or not, in assigning weight to values under considerations can be implicit and unconscious — as a result, it is difficult to uncover and address its impact on decision-makers in a rational manner. Prof. Peters suggests that PP’s focus on right infringement over loss of social welfare must be viewed not as a bias but as a structural feature to encourage right-based thinking. One point we did not make in the original essay, but now consider useful to add here, is that PP proponents’ framing of competing values as a “right” versus “social welfare” can be quite arbitrary in itself and potentially leads to irrational weighting and balancing. At least in some cases, the perceived morally inferior values characterized as “general social welfare” may be easily re-characterized as “rights.” Governmental measures for suppressing the pandemic, for example, while curtailing a range of personal liberties, promote public interest in health and life, and yet “right to life” is itself also a fundamental human right. In many cases, it is much less clear why we would accept as a virtue PP’s presumptive hostility toward whatever happens to be framed as “government interest” or “public welfare,” since what PP often does is in fact difficult right-right trade-off.
3. Courts can and should balance costs and benefits
Both replies contend that PP is more suitable as an analytical tool for courts than CBA. The main reason offered is that courts are uniquely positioned to perform right-based reviews of legislative and administrative actions, but not to make policies by comprehensively (re-)considering costs and benefits. This rejoinder has so far emphasized again that our critique is not against “right-based thinking,” but against irrationally under-inclusive balancing conducted under PP.
Our original essay also examined the comparative institutional competence arguments for PP, and there we showed that these arguments, while sound with respect to constitutional review, tend to exaggerate the division of labor among different legal decision-makers in a broader range of contexts. Without repeating points made, we note here that there are at least two other arguments in support of courts’ conducting CBA.
The first argument is still about the transparency advantage CBA has over PP, as we explained earlier in this rejoinder. Both replies contend that utilitarian or consequentialist calculus is not universally accepted as the way for making tough normative decisions. One possibility, however, is that tough decisions are made along utilitarian lines without explicitly acknowledging the underlying calculus, rendering such decisions even harder to examine and critique. The allocation of scarce medical resources, which Prof. Peters alludes to as an example, illustrates how discourse of “principled thinking” may obfuscate the actual rationales underlying decisions made: As widely reported, resources from intensive care beds to ventilators during the pandemic crisis have often been allocated based on factors such as chance of survival (varying primarily with age), despite medical ethics boards’ hesitance or even refusal to issue clear guidelines to physicians.
Second, as one of us has explained elsewhere, empirical knowledge is inherently required for both CBA and PP. As a result, wherever judicial decisions cannot rely on categorical rules but have to conduct balancing analysis, courts will eventually have to attend to and be able to process and utilize empirical information in some manner. It is therefore increasingly unconvincing and unjustified to claim that courts cannot be tasked to run CBA in meaningful ways due to lack of expertise and capabilities.
4. Concluding remarks
To the extent that constitutional review is in whole or in part consequentialist, balancing is inevitable. We argued in our essay that CBA is a better balancing tool, though the conventional form of CBA that is normatively agnostic may not be a ready tool for constitutional courts. Even though we are sympathetic to the argument that constitutional courts should not re-do the calculus that lawmakers have done, we question why courts are justified in using PP, which accounts for a particular — often arbitrarily framed — subset of values, but not for other subsets of values. The take-away point of our essay should be that PP is clearly not the best tool in any context. Even constitutional courts that are tasked with considering some, but not all, factors and making difficult normative (and empirical) decisions should start thinking about devising new, better analytical methods than PP.
* Associate Professor, Peking University Law School. xindai@pku.edu.cn.
** Research Professor, Institutum Iurisprudentiae, Academia Sinica, Taiwan. kleiber@sinica.edu.tw.
Both authors contributed equally and are listed in reverse alphabetical order. We thank Kuan-ting Chen, Ming-hsi Chu, and Yi-Chun Ou for research assistance.
Comments