Proportionality without Balancing

Abstract

Proportionality figures prominently in constitutional adjudication of many countries. It typically serves as a test that courts use to decide whether restrictions on fundamental individual rights are constitutional. Part of the test is meant to include a balancing exercise (trade-offs) between individual rights and public interest. This picture, however, poses a puzzle. If one accepts that constitutional rights are stringent deontological norms, then one cannot accept both that proportionality involves trade-offs with public interest, and that it is essential to the determination of constitutional rights. This is because, qua stringent deontological norms, they should not be subject to balancing, except in extreme scenarios. To address this puzzle, some scholars argue that proportionality should not be used as a judicial test. Others reject that constitutional rights are stringent deontological norms and endorse the balancing model of proportionality. In this chapter, I defend the third option: while accepting that rights are stringent deontological norms, I argue for a reason-based conception of proportionality that does not involve any balancing.

Keywords: proportionality, balancing, fundamental rights, judicial review, constitutional review, equal respect and concern, deontology, consequentialism, specificationism