Title
Constitutional Proportionality and Moral Deontology
Abstract
I come to grips with the deontological critique of constitutional proportionality that asserts that this doctrine ignores rights and slips into the utilitarian maximization of societal interests. I offer a four-pronged classification of the deontological structures underlying the settlement of conflicts of rights and principles. Two of these structures are scalar: balance deontology and threshold deontology. The other two are nonscalar: derogation deontology and hierarchy deontology. I argue that proportionality relies on the scalar structures, but nonetheless sets much store by rights. Therefore, the deontological critique of proportionality is misplaced. However, I claim that proportionality is similar to utilitarian balancing in its practical import. Like utilitarian balancing, proportionality allows judicial arbitrariness by recommending courts to adopt an intuitionist decision-making procedure. Based on this point, I offer a republican argument against proportionality. Instead of an intuitionist approach, I defend a committal method of constitutional adjudication based on hierarchy deontology. The point of this procedure is to introduce priority rules via moral deliberation. I submit that a rule-based kind of deontologism coheres better with rule of law values.
Document Type
Article
Year
2021
Digital USD Citation
Spector, Horatio, "Constitutional Proportionality and Moral Deontology" (2021). Faculty Scholarship. 88.
https://digital.sandiego.edu/law_fac_works/88