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Proportionality, balancing, and the cult of constitutional rights scholarship

Webber, Grégoire C. N. (2010) Proportionality, balancing, and the cult of constitutional rights scholarship. Canadian Journal of Law and Jurisprudence, 23 (1). pp. 179-202. ISSN 0841-8209

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Abstract

Constitutional rights’ scholarship is anchored in the cult of proportionality and balancing. Despite the absence of reference to proportionality or balancing in most State constitutions or international conventions, scholars and judges alike have embraced a vocabulary of proportion, cost, weight, and balance. Drawing on the work of German scholar Robert Alexy and Canadian scholar David Beatty, this essay attempts to illustrate how the principle of proportionality conceals more than it reveals in rights-reasoning. By challenging the contemporary cult of practical reasoning over rights, the essay advocates a turn away from a methodology and vocabulary of proportionality in favour of a more direct struggle with political-moral reasoning.

Item Type: Article
Official URL: http://www.law.uwo.ca/research/the_canadian_journa...
Additional Information: © 2010 Canadian journal of law and jurisprudence
Library of Congress subject classification: K Law > K Law (General)
Sets: Departments > Law
Rights: http://www.lse.ac.uk/library/usingTheLibrary/academicSupport/OA/depositYourResearch.aspx
Date Deposited: 31 Mar 2010 15:03
URL: http://eprints.lse.ac.uk/27634/

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