David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
Learn more about PhilPapers
Canadian Journal of Law and Jurisprudence 24 (1):109-128 (2011)
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 rights proportionality defeasibility balancing|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Moshe Cohen-Eliya & Iddo Porat, American Balancing and German Proportionality: The Historical Origins.
Charles-Maxime Panaccio (2010). Review of G.C.N. Webber, The Negotiable Constitution: On the Limitation of Rights (Cambridge University Press, 2009). [REVIEW] International Journal of Constitutional Law 8 (4):988-995.
Matthias Klatt (2012). The Constitutional Structure of Proportionality. Oxford University Press.
Aharon Barak (2010). Proportionality and Principled Balancing. Law and Ethics of Human Rights 4 (1):1-16.
Giovanni Sartor (2010). Doing Justice to Rights and Values: Teleological Reasoning and Proportionality. [REVIEW] Artificial Intelligence and Law 18 (2):175-215.
Suzanne Uniacke (2011). Proportionality and Self-Defense. Law and Philosophy 30 (3):253-272.
Paul-Erik N. Veel (2010). Incommensurability, Proportionality, and Rational Legal Decision-Making. Law and Ethics of Human Rights 4 (2):178-228.
Göran Hermerén (2012). The Principle of Proportionality Revisited: Interpretations and Applications. [REVIEW] Medicine, Health Care and Philosophy 15 (4):373-382.
Mattias Kumm (2010). The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review. Law and Ethics of Human Rights 4 (2):142-175.
Jacco Bomhoff, Balancing, the Global and the Local: Judicial Balancing as a Problematic Topic in Comparative (Constitutional) Law.
Stephen Gardbaum (2010). A Democratic Defense of Constitutional Balancing. Law and Ethics of Human Rights 4 (1):79-106.
Added to index2011-08-30
Total downloads185 ( #17,812 of 1,792,815 )
Recent downloads (6 months)50 ( #18,002 of 1,792,815 )
How can I increase my downloads?