Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship

26 Pages Posted: 5 Jan 2009 Last revised: 23 May 2010

See all articles by Grégoire Webber

Grégoire Webber

Queen's University - Faculty of Law; London School of Economics - Law Department

Date Written: January 1, 2010

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.

Keywords: Proportionality, balancing, constitutional rights, Robert Alexy, David Beatty, incommensurability

Suggested Citation

Webber, Grégoire, Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship (January 1, 2010). Canadian Journal of Law and Jurisprudence, Vol. 23, No. 1, 2010. Available at SSRN: https://ssrn.com/abstract=1322810

Grégoire Webber (Contact Author)

Queen's University - Faculty of Law ( email )

Macdonald Hall
Kingston, Ontario K7L3N6
Canada

HOME PAGE: http://law.queensu.ca/directory/gregoire-webber

London School of Economics - Law Department ( email )

Houghton Street
London, WC2A 2AE
United Kingdom

HOME PAGE: http://www.lse.ac.uk/collections/law/staff/gregoire-webber.htm

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