Abstract
The principle of proportionality is on the rise. A growing number of constitutional and international courts refer to some form of proportionality in their jurisprudence. At the same time, the principle is receiving more and more attention in international legal scholarship. Yet proportionality has not remained uncontested. In particular, some scholars have severely criticized the core of the proportionality test, which involves a balancing of competing values. This balancing is accused of being irrational because it requires placing incommensurable values on the same scale. In a famous dictum, Judge Scalia once claimed that balancing competing constitutional values is like determining “whether a particular line is longer than a particular rock is heavy.”
Publisher
Cambridge University Press (CUP)
Reference141 articles.
1. See Schauer Frederick , Balancing, Subsumption, and the Constraining Role of Legal Text, in Institutional Reason: The Jurisprudence of Robert Alexy 307, 310 (Matthias Klatt ed., 2011) (“When critics like Habermas accuse the balancing process of being irrational, however, it appears that what they really mean is unconstrained.“).
2. Nimmer , supra note 86, at 943.
3. Wednesbury Corporation [1948] 1 K.B. at 229.
4. Id. at 406.
5. Koskenniemi Martti , From Apology to Utopia 591 (2005).
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