Proportionality, comparability, and parity: a discussion on the rationality of balancing
This article analyses the rationality of the principle of proportionality as a justificatory method for solving cases involving conflicts of constitutional principles. It addresses what I call ‘the problem of comparability’: a set of arguments claiming that proportionalists are getting wrong what ha...
| Main Author: | |
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| Format: | Journal article |
| Language: | English |
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Cambridge University Press
2024
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| _version_ | 1797112386627305472 |
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| author | Rios Carrillo, P |
| author_facet | Rios Carrillo, P |
| author_sort | Rios Carrillo, P |
| collection | OXFORD |
| description | This article analyses the rationality of the principle of proportionality as a justificatory
method for solving cases involving conflicts of constitutional principles. It addresses what I
call ‘the problem of comparability’: a set of arguments claiming that proportionalists are
getting wrong what happens when constitutional principles collide. The problem of
comparability suggests that balancing cannot be done if some conflicts of constitutional
principles are, in reality, cases of noncomparability, incommensurability, incomparability, or
vagueness. In this essay I challenge the views of both proportionalists and their skeptics.
Against the skeptics, I shall argue that proportionality can survive the challenge posed by the
problem of comparability. Against the proportionalists, I shall submit that proportionality
cannot be understood as a system of trade-offs between degrees of satisfaction of principles.
If comparison among constitutional principles is to be rational, we need a different approach
to normativity. One that allows for the possibility of parity. |
| first_indexed | 2024-03-07T08:23:30Z |
| format | Journal article |
| id | oxford-uuid:9ada15f0-18a0-4ac8-a028-088468a2fedd |
| institution | University of Oxford |
| language | English |
| last_indexed | 2024-03-07T08:23:30Z |
| publishDate | 2024 |
| publisher | Cambridge University Press |
| record_format | dspace |
| spelling | oxford-uuid:9ada15f0-18a0-4ac8-a028-088468a2fedd2024-02-09T14:49:34ZProportionality, comparability, and parity: a discussion on the rationality of balancingJournal articlehttp://purl.org/coar/resource_type/c_dcae04bcuuid:9ada15f0-18a0-4ac8-a028-088468a2feddEnglishSymplectic ElementsCambridge University Press2024Rios Carrillo, PThis article analyses the rationality of the principle of proportionality as a justificatory method for solving cases involving conflicts of constitutional principles. It addresses what I call ‘the problem of comparability’: a set of arguments claiming that proportionalists are getting wrong what happens when constitutional principles collide. The problem of comparability suggests that balancing cannot be done if some conflicts of constitutional principles are, in reality, cases of noncomparability, incommensurability, incomparability, or vagueness. In this essay I challenge the views of both proportionalists and their skeptics. Against the skeptics, I shall argue that proportionality can survive the challenge posed by the problem of comparability. Against the proportionalists, I shall submit that proportionality cannot be understood as a system of trade-offs between degrees of satisfaction of principles. If comparison among constitutional principles is to be rational, we need a different approach to normativity. One that allows for the possibility of parity. |
| spellingShingle | Rios Carrillo, P Proportionality, comparability, and parity: a discussion on the rationality of balancing |
| title | Proportionality, comparability, and parity: a discussion on the rationality of balancing |
| title_full | Proportionality, comparability, and parity: a discussion on the rationality of balancing |
| title_fullStr | Proportionality, comparability, and parity: a discussion on the rationality of balancing |
| title_full_unstemmed | Proportionality, comparability, and parity: a discussion on the rationality of balancing |
| title_short | Proportionality, comparability, and parity: a discussion on the rationality of balancing |
| title_sort | proportionality comparability and parity a discussion on the rationality of balancing |
| work_keys_str_mv | AT rioscarrillop proportionalitycomparabilityandparityadiscussionontherationalityofbalancing |