Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship

Abstract

Constitutional rights’ scholarship is anchored in the cult of proportionality and balancing. Despite the absence of reference to proportionality or balancing in most State constitutions or international conventions, scholars and judges alike have embraced a vocabulary of proportion, cost, weight, and balance. Drawing on the work of German scholar Robert Alexy and Canadian scholar David Beatty, this essay attempts to illustrate how the principle of proportionality conceals more than it reveals in rights-reasoning. By challenging the contemporary cult of practical reasoning over rights, the essay advocates a turn away from a methodology and vocabulary of proportionality in favour of a more direct struggle with political-moral reasoning.

Facts, Preferences, and Doctrine: An Empirical Analysis of Proportionality Judgment

“…As noted above, the proportionality doctrine assigns positive utility to a “worthy goal” and negative utility to infringement of rights. However, it does not specify the relative weight of the “goal” and “rights infringement” factors, nor does it stipulate the impact of changes in these factors on utility (Aleinikoff ; Petersen ; Tsakyrakis ; Webber ). This particular vagueness poses a problem in stating clear empirical expectations regarding behaviors that are congruent with this doctrine and those that are not.…”

Proportionality review in administrative law

“…2 Major books devoted to proportionality that have appeared within the last five years alone include titles by Barak (2012), Bomhoff (2013), Cohen-Eliya and Porat (2013), Huscroft et al (2016), and Klatt and Meister (2012). Critical treatments of the use of proportionality include Webber (2010) and Tsakyrakis (2009). 3 It is also worth noting that this chapter focuses exclusively on proportionality as a form of judicial control over administrative action.…”

Securing decent incomes at a crossroads: On the legal feasibility of a Framework Directive on Minimum Income

“… 57. See for an extensive analysis on the principles of subsidiarity and proportionality: De Baere and Gutman (2017); Davies (2006); Watson (1991:37-40); Barnard (2012: 267); Craig (2012); Bermann (1994); de Búrca (1999); Sauter (2013); Klatt and Meister (2012); Webber (2010:179); Aranguiz (2020). …”