Putting Balancing in the Balance

Abstract

The essay focuses on the main issues that are at stake between proponents and critics of proportionality, in an attempt to assess the doctrine in comparison with other proposed methods of adjudication that reject it. Although there are probably as many conceptions of the proportionality analysis as are its defenders, it is argued that none of the accounts of the principle of proportionality widely encountered in theory and in practice provides a method of adjudication worth pursuing. To begin with, it is shown that if proportionality is viewed as a mere technical device, independent from any moral reasoning, then it is faced with the unresolvable issue of the incommensurability of the items that are to be balanced. If, further, it is accepted that moral reasoning does make part of the proportionality analysis, it is argued that the premises on which the principle of proportionality is based do not allow for a solid account of human rights and point towards an implausible path of moral reasoning. Finally, it is pointed out that even if, instead, proportionality is supported with a sound theory of human rights, its use by the judiciary for the review of legislation distorts the notion and purpose of judicial review and finds itself at odds with fundamental conceptions of the institutional balance needed in a representative democracy.