Proportionality and 'Deference' in Contemporary Constitutional Thought

49 Pages Posted: 16 Mar 2017 Last revised: 19 May 2017

Duncan Kennedy

Harvard Law School

Date Written: October 21, 2016

Abstract

This chapter proposes that proportionality as a mode of legal reasoning is implicated in no fewer than three phases of the decision of ‘hard cases’ of judicial review of statutes. First, at the level of legal ‘substance,’ the jurist faces the situation of contemporary legal thought characterized by the rise of proportionality, institutional competence arguments, and the ‘hermeneutic of suspicion’ that ideology corrupts legal judgment. Second, it is arguably appropriate for the judge to decide whether or not to uphold a statute, in spite of his good faith opinion against it, on the basis of a proportional weighing of the counter-majoritarian difficulty against the bad consequences of deference. Third, the judge may have to decide proportionally whether to present his reasons for striking a statute in their true proportional form or rather to violate his duty of candor by presenting himself as a legal formalist. The judge, inescapably a political actor, is subject to the decisionist ethical calculus of Max Weber’s Politics as a Vocation.

Keywords: law, constitutional law, legal theory, comparative law

Suggested Citation

Kennedy, Duncan, Proportionality and 'Deference' in Contemporary Constitutional Thought (October 21, 2016). Harvard Public Law Working Paper No. 17-09. Available at SSRN: https://ssrn.com/abstract=2931220

Duncan Kennedy (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
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Cambridge, MA 02138
United States
617-495-4619 (Phone)

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