Doing Justice to Rights and Values: Teleological Reasoning and Proportionality
44 Pages Posted: 25 Jun 2010 Last revised: 24 Dec 2013
Date Written: June 24, 2010
This paper studies how legal choices need to consider multiple rights and values, and can be assessed accordingly. First it is argued that legal norms (and in particular constitutional norms and right-norms) often prescribe the pursuit of goals, which may be in conflict one with another. Then a model of teleological reasoning is brought to bear on choices impacting on different goals, among which those prescribed by constitutional norms. An analytical framework is provided for comparing these impacts, in order to evaluate a choice (and in particular the choice to adopt a legislative measure) with regard to possible alternatives. The assessment of legislative choices according to proportionality is considered, and the steps of the proportionality review are modeled using the provided analytical framework. Finally, the framework is expanded to include the ideas of reasonableness and institutional deference, and the corresponding margins of appreciation.
Keywords: Proportionality, Teleological Reasoning, Values, Norms, Constitutional Review
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