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Proportionality, Balancing, and Rights

Part of the Law and Philosophy Library Book Series (volume 136)

Editors: Sieckmann, Jan-R.

DOI: 10.1007/978-3-030-77321-2

ISBN: 978-3-030-77320-5

Publisher: Springer International Publishing - Springer Journals

Aug 13, 2021

1 - 10 of 10 Chapters

Available

Constitutional Rights, Proportionality, and Argumentation

Alexy, Robert

Pages: 1 –10

[In this article I argue that the rational application of constitutional rights necessarily presupposes proportionality analysis as defined by principles theory and that proportionality analysis can be rational only if it is embedded in a theory of legal argumentation. By this means,...
Available

From Constitutional Discretion to the Positivist Weight Formula

Duarte, David

Pages: 11 –48

[A correct understanding of balancing discretion shows how proportionality works as an internal limit of discretion and how suitability, necessity and proportionality in the narrow sense constrain the choices to be made by a legislative normative authority. On the other hand, an accurate...
Available

Brute Balancing, Proportionality and Meta-Weighing of Reasons

Silva Sampaio, Jorge

Pages: 49 –84

[The present paper aims at analysing and fleshing out the concept of balancing and explores to what extent the discourse of reasons can be helpful in weighing contexts. First of all, I will conceptually distinguish between brute balancing and guided balancing, proportionality and weighing. Then I...
Available

Limited Balancing: The Principle of Human Dignity and Its Inviolability

Bäcker, Carsten

Pages: 85 –111

[Human Dignity is inviolable. This sentence, at the very top of the German Constitution, has undergone an absolute and a relative reading. According to the absolute reading, human dignity cannot be infringed upon. Thus, human dignity as a principle is not open to balancing with conflicting...
Available

To Balance or Not to Balance: The Quest for the Essence of Rights

Sieckmann, Jan-R.

Pages: 113 –134

[A well-known objection to the method of balancing rights is that individual rights are absolute or almost absolute and hence must not be balanced with competing rights, principles, or policies, or at least must receive priority in such a balancing. I will argue that, as an attempt to exclude the...
Available

Limited Review in Balancing Constitutional Rights

Borowski, Martin

Pages: 135 –162

[In liberal democracies constitutional courts or ‘Supreme Courts’ are typically empowered to undertake constitutional review of parliamentary statutes. This often involves balancing constitutional rights against other constitutional rights and/or collective goods. To be sure, the court empowered...
Available

Positive Rights: Who Decides? Judicial Review in Balance

Klatt, Matthias

Pages: 163 –195

[Positive rights which require the state to take action are often criticized because they give rise to the justiciability problem. Courts, rather than democratic legislatures, decide upon the scope and content of the rights. This article argues that this democratic objection against positive...
Available

Proportionality Test and Constitutional Social Rights

De Fazio, Federico

Pages: 197 –213

[The purpose of this article is to make a rational reconstruction of the use of the proportionality test in contexts of judicial adjudication of constitutional social rights. This reconstruction will be developed in two stages. First, I will deal with the question of whether the proportionality...
Available

An Argument for the Test of Proportionality in Concreto: Silenced Voices from the Margins to the Center

Clérico, Laura; Aldao, Martín

Pages: 215 –229

[As a four-step exam, proportionality has become a well-known technique of rights adjudication. Moreover, we claim, among others, that as a framework for argumentation, and through modulation, it can be used in a manner that enables courts to compensate structural inequality patterns, allowing...
Available

‘Thou Shalt Balance’: Making Sense of the Delegation of Proportionality Testing to the End Users of Laws

Oliver-Lalana, A. Daniel

Pages: 231 –252

[Lawmakers are often expected to legislate on the basis of the weighing of rival social claims or demands, and to enact rules that yield a reasonable conciliation of interests. But sometimes they refrain from even attempting to strike any balance between competing interests, and pass legislation...

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