Proportionality in Lawmaking

Abstract

The judgment of proportionality—i.e. the weighing or balancing of two or more competing legal principles—is often said to be the core of legal reasoning. One of the premises underlying such a contention is that judges (should) adhere to a non-positivistic legal approach: when justifying their rulings, that is, they are certainly “bound by the Law”, but not as this is understood within legal positivism. A non-positivistic conception of law entails the claim that judges interpreting and applying legal norms do combine, in fact, legal and moral reasoning. On the other hand, constitutionalism , as a paradigm in law and jurisprudence, implies that a culture of justification extends to all public authorities, i.e. not only to the executive branch and the judiciary but also to legislatures. Thus, the sole fact that a parliament has been democratically elected is not enough to entirely satisfy its claim to legitimacy—in other words, winning elections cannot be the only basis of legislative authority. Against this backdrop, the focus of this chapter is to explore the possibility of broadening the principle of proportionality , as characterized by Robert Alexy, to legislative decisions. Additionally, and in connection with the non-positivistic legal approach just mentioned, the second part of the essay will highlight some misunderstandings about the study of lawmaking which one can find in the province of legal theory.