The Reasonable Adjustment of Basic Liberties. Liberalism and Judicial Balancing

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dc.contributor.author VALENTINI, Chiara
dc.date.accessioned 2009-10-23T08:03:23Z
dc.date.available 2009-10-23T08:03:23Z
dc.date.issued 2009
dc.identifier.issn 1830-7728
dc.identifier.uri http://hdl.handle.net/1814/12715
dc.description.abstract This paper focuses on the “balancing” model of constitutional adjudication, conceived as a decisionmaking approach aimed to establish a “reasonable” equilibrium among conflicting norms of constitutional rank, so as to adjust the abstract form of the law to concrete needs. I outline the balancing models which are dominant in practice and stress their argumentative structure: on the one hand, the model centered on proportionality analysis that has been spreading over Europe and at a transnational level; on the other hand, the model adopted in the US context, where proportionality analysis meets a strong resistance and is regarded, for historical and ideological reasons, as a threat for the priority of rights. Focusing on this controversial aspect of the interconnection between liberal constitutionalism and judicial balancing, I draw on John Rawls’ account of practical reasoning to outline a model of constitutional adjudication that brings balancing and proportionality analysis together with the priority of rights. In this perspective, I argue that the Rawlsian idea of reasonableness, along with the nested idea of reciprocity, provides the balancing approach with a theoretical foundation and serves as the unitary argumentative guideline along which the exercise of public reason unfolds - from the foundational level to the applicative level - by mutually adjusting conflicting values and goods under some rules of priority and the criterion of “proportionality as reciprocity”. en
dc.language.iso en en
dc.relation.ispartofseries EUI MWP en
dc.relation.ispartofseries 2009/36 en
dc.subject Balancing en
dc.subject John Rawls en
dc.subject proportionality en
dc.subject reasonableness en
dc.subject judicial review en
dc.title The Reasonable Adjustment of Basic Liberties. Liberalism and Judicial Balancing en
dc.type Working Paper en


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