Proportionality and Rationality
Keyword(s):
The Law
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This chapter presents the argument that the rational application of constitutional rights necessarily presupposes proportionality analysis as defined by principles theory and that proportionality analysis can be rational only if it is embedded in a theory of legal argumentation. The basic elements of principles theory are the Law of Balancing, explicated by the Weight Formula, and the Law of Competing Principles. Both concern the formal rationality of balancing. The connection of this formal dimension of rationality with the theory of legal argumentation connects the formal with a substantive dimension. The result of this connection is a system that is compatible with the requirements of universalizability and legal certainty.