Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship
26 Pages Posted: 5 Jan 2009 Last revised: 23 May 2010
Date Written: January 1, 2010
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
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