Abstract
The third chapter analyses in detail and last step of proportionality analysis, namely balancing. The authors defend a wide-scope theory, allowing for definitional generosity in rights reasoning. The flexibility of the balancing procedure is demonstrated not to violate the rule of law. The proper place of moral argument in proportionality is explicated with the help of elements of Alexy’s Theory of Legal Argumentation (OUP, 2009), namely the special-case thesis and the distinction between internal and external justification of legal propositions. The counter-argument that balancing would amount to mere calculation is rejected. The challenge of incommensurability is elaborated in detail. It is demonstrated how an inviolable core content of rights has to be constructed. The claim to correctness is not lost in balancing, and balancing is not over-emphasized within proportionality analysis.
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