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In Defence of Two-Step Balancing and Proportionality in Rights Adjudication

23 Pages Posted: 31 Aug 2011  

Charles-Maxime Panaccio

University of Ottawa - Civil Law Section

Date Written: August, 30 2011

Abstract

Two-step proportionality-balancing [TSPB] has become the standard method for human and constitutional rights decision-making. The first step consists in determining whether a rights-provision has been infringed/limited; if the answer to that first question is positive, the second step consists in determining whether the infringement/limit is reasonable or justified according to a proportionality analysis. TSPB has regularly been the target of some criticism. Critiques have argued that both its ‘two-step’ and ‘proportionality’ elements distort reality by promoting a false picture of rights and constitutional decision-making. This would cause negative moral consequences. This article seeks to defend TSPB against these criticisms and to depict it in a more appropriate and favourable light. First, it is argued that both aspects of TSPB do not have the dire moral consequences that opponents suggest they have. Second, it is argued that TSPB, deploying notions such as burdens, presumptions and prima facie/defeasible propositions, constitutes a valuable framework for public argumentation and authoritative decision-making.

Keywords: constitutional law, legal theory, rights, proportionality, defeasibility

Suggested Citation

Panaccio, Charles-Maxime, In Defence of Two-Step Balancing and Proportionality in Rights Adjudication (August, 30 2011). Canadian Journal of Law and Jurisprudence, Vol. 24, No. 1, 2011. Available at SSRN: https://ssrn.com/abstract=1919777

Charles-Maxime Panaccio (Contact Author)

University of Ottawa - Civil Law Section ( email )

57 Louis Pasteur Dr
Ottawa
Canada
613 562-5800 ext. 3248 (Phone)

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