Judging in Secular Times: Max Weber and the Rise of Proportionality
Supreme Court Law Review (2d)
13 Pages Posted: 22 Aug 2013
Date Written: August 21, 2013
This paper argues that the spread of proportionality analysis can be explained, in part, by the decline of metaphysics and universal morals in the modern social imaginary. Lacking societal consensus regarding many public policy questions, the judicial branch has turned to proportionality analysis as a means of managing this disagreement. By doing so, judges have transformed the administration of justice into a form of bureaucratic rule – represented by a mechanical churning of the justice machine – anticipated by Max Weber’s sociology of law. After discussing a few examples drawn from Canadian jurisprudence and elsewhere, the paper concludes by asking whether jurists are best suited to undertake this sort of task and the role legal education will play in its future.
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