Constitutional Proportionality and Moral Deontology


Horatio Spector


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.

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