An egalitarian defense of proportionality-based balancing

Abstract

In this article, I argue that there are two distinct conceptions of the principle of proportionality within constitutional law and theory. One comes within what I call "the priority of rights model" and the other within what I call "the model of optimization of values in conflict." The main purpose of the text is to propound an egalitarian defense of proportionality-based balancing, such as it is understood within the model of optimization. After having described the "idealtype" of each model (Section 2), I argue that the normative justification of the model of optimization lies in the fact that it honors the moral equality of persons in context of pluralism and cultural diversity (Section 3). In particular, I argue that, from this normative point of view, the priority of rights model has become difficult to sustain. The argument is a form of "ethical proceduralism": it refers to a procedure by virtue of which the normative validity of the competing models is tested.