An egalitarian defense of proportionality-based balancing: A reply to Luc B. Tremblay

Abstract

In his article, “An egalitarian defense of proportionality-based balancing,” Professor Tremblay offers an interesting and carefully argued normative justification of balancing as a legal method. In my response, I concur with much of what he says, but raise certain doubts about a number of points. My doubts concern the distinction between normative status and abstract weights of colliding interests, the assignment of the notion of rights as trumps or firewalls purely to the priority of rights model, and Tremblay’s claim that proportionality was allowing for formal egalitarian decisions excluding the intricacies of moral reasoning. I discuss these concerns in some detail and conclude that the core of Tremblay’s normative defense of proportionality-based balancing is true—but in quite a different way than he suggests.