Book Review: Against proportionality and balancing (Jurisprudence, 2020) (original) (raw)
Related papers
(2012) Proportionality--a benefit to human rights? Remarks on the ICON controversy
International Journal of Constitutional Law, 2012
Referring to the recent debate between Tsakyrakis and Khosla, this article highlights several important aspects of the proportionality test. It analyzes the relation between proportionality and the rights as trumps model, defending a weak trump model which combines the ideas of trumping and balancing. Furthermore, it demonstrates the proper place of moral considerations in proportionality analysis, and rejects the objection of incommensurability. Other arguments discussed in detail are the view that balancing boils down to mere mathematical calculation, and the problem of definitional generosity. In the last section, the authors examine the European Court of Human Rights' decision in Otto-Preminger-Institut v Austria. Overall, the article defends the view that proportionality is a rational and indispensable part of rights reasoning.
In Defense of Two-Step Balancing and Proportionality in Rights Adjudication
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.
Proportionality and the Relevance of Rights
2015
It is now well known that proportionality-based balancing has become the dominant approach to the judicial review of legislation that limits constitutional rights. But has proportionality outgrown rights? In other words, are specific constitutional rights — as opposed to, say, a general right to proportional treatment — necessary, or desirable, once courts have adopted proportionality analysis? This issue animates the debate between Professors Luc Tremblay and Matthias Klatt in the International Journal of Constitutional Law. In this comment, I weigh in on the Tremblay/Klatt debate, and make a case for the continued relevance of rights in proportionality balancing.
(eds.) Proportionality and the Rule of Law: Rights, Justification, Reasoning
2014
To speak of human rights is to speak of proportionality. Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, South Africa, and the United States, as well as the jurisprudence of treaty-based legal systems such as the European Convention on Human Rights. This volume brings together many of the world’s leading constitutional proponents and critics of proportionality to debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning.
2016
Whether human rights are a universal concept has been the subject of much debate among legal experts, but major controversy has surrounded rights substance, and not so often their structure. Authors discuss whether freedom of belief or gender equality, for example, are ubiquitous, without considering, however, that having a right may mean significantly different things in different legal systems, depending on how rights are structured. This essay addresses the arguable universality of a certain structure of rights; it does so by tackling the worldwide spread of proportionality and the conception of fundamental rights that underlies it in the principles-theory variant. Alexy has formulated a strong thesis on the universality of a certain conception of rights (and principles). He claims that proportionality is conceptually necessary in all minimally developed legal systems because it derives from the structure of principles (or fundamental rights), and vice-versa. This proposition contrasts with other theses that attempt to justify why proportionality is close to becoming a lingua franca in constitutional decision-making. The weak thesis holds that judges ought to have recourse to proportionality because it enhances the effectiveness of fundamental rights. The moderate thesis holds that proportionality may indeed be necessary in a legal system, but only if certain premises are present there. These premises are the wide-scope conception of fundamental rights and its equivalent in which respects constitutional principles: the optimization thesis. I assume that there are viable alternatives to them, for not all theorists relate principles to optimization, and in countries like the U.S., which is not an obvious example of underdeveloped legal system, rights are conceived of narrowly. This study posits, firstly, that there is no evidence that proportionality is empirically necessary; secondly, that the weak thesis raises difficult problems of prognosis; and thirdly, that a conceptual necessity, as the one Alexy implies between rights and proportionality, must presuppose a normative necessity, which is contingent on certain premises. As a result, the moderate thesis holds true, and the widespread model of rights endorsed by Alexy is not conceptually necessary everywhere. This essay will contribute for the debates on the universality of legal concepts by shedding light on the important choices members of a legal community and participants in legal discourse have to make when framing or interpreting their constitution.
The Balancing of Values and the Compromising of the Guarantee of Fundamental Rights
This paper criticizes the balancing method with regard to German and Brazilian constitutional law. Following an introductory analysis of the changed role of judicial review brought about by the establishment and collapse of the welfare state, the principle of proportionality in doctrines and precedents concerning fundamental rights is outlined. The paper presents the use of this principle, its link with the balancing method and its contents - viz suitability, necessity and proportionality in narrow sense (parts II and III). Subsequently, certain questionable aspects of Robert Alexy’s theory of fundamental rights are analyzed (part IV). Furthermore, the paper examines some of the problematic consequences which might result from balancing, such as: the limitation of fundamental rights through the so-called immanent restrictions, an increment of judicial discretion, the possibility that constitutional review becomes a ‘guardian of social values’, the equalization of legal norms and values, the belief in the method, the absence of a criterion for establishing proportional relations, and the imbalance between legislation and constitutional review (part V). Finally, possible alternatives to the balancing method are discussed based on the contributions of authors such as Ronald Dworkin and Klaus Günther (part VI).
The Principle of Proportionality: The Challenges of Human Rights
Journal of Civil Law Studies, 2010
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BEYOND CERTAINTY. ABUSE OF RIGHTS AND BALANCING IN CONTEMPORARY JURISPRUDENCE
Efforts to limit the exercise of rights with reference to the principles of justice are ,undoubtedly, a common reference point of the legal method of balancing and that of the prohibition of abuse. The former proposes to enrich positive law with instances of material justice found in a specific case. The latter stops the law sheltering behind a sterile, unilateral defence of its formal face. In the current scenario of “mild law”, of “reasonableness”, also described as “proportionality”, a significant part of European jurisprudence tends to characterize the method of prohibition of abuse of rights as a demonstration of balancing between interests: a ‘magic formula’ always able to identify the right solution in a specific case. This is an incorrect identification. In each of the many variations of civil, constitutional, EU (and tax) laws, the method of prohibition of abuse has characteristics that guarantee full juridical dogmatic autonomy compared to the balancing method.
PANORAMA OF BRAZILIAN LAW
This is a research paper on the prevalence of interests and values of the highest social groups against the interests and values of subordinate social groups, such as migrants, even in judicial decisions of apparently individual conflicts involving only plaintiff and defendant. Individual rights, on which the modern Government was structured, tend to prevail over social rights. This prevalence is crucial even in the context of the theory of constitutional rights of Robert Alexy, who states equal importance to individual or social rights and that, because of the proportionality, there would be a chance that social rights would prevail. It is even possible to say that each collision of rights will be determined proportionally and differently, but the proportionality does not confer rationality to the discretion needed to justify the decision. The proportional decision has more to do with the chosen criterion than the conflicting rights.