Date: 2008
Type: Working Paper
“Reasonableness” and Value Pluralism in Law and Politics
Working Paper, EUI LAW, 2008/13
SADURSKI, Wojciech, “Reasonableness” and Value Pluralism in Law and Politics, EUI LAW, 2008/13 - https://hdl.handle.net/1814/8588
Retrieved from Cadmus, EUI Research Repository
In law, the category of reasonableness, when used in a “strong sense”, is inherently lied
up with proportionality, and also with the test of necessity, and thus is a guarantee of a
minimal restriction of constitutional rights compatible with the attainment of a given
purpose. This approach to the scrutiny of restrictions of constitutional rights carries
certain disadvantages because of an unfortunate alignment of the judicial role with the
role of legislator, but it also has some great advantages when compared with alternative
approaches: it is more transparent when it comes to revealing to the public all the
ingredients of the judicial calculus, and most importantly, it reduces the sense of defeat
for the losing party. As such, it is consensus-oriented because it acknowledges explicitly
that there are valid constitutional arguments on both sides. In turn in political
philosophy the notion of reasonableness applies to the determination of the standards of
justifications for authoritative decisions so that they can be considered legitimate, i.e.
calling for respect even from those subjected to them who do not agree with them on
merits. The attractiveness of this idea results from the fact that it combines two
enormously popular traditions in democratic theory: those of social contract and of
deliberative democracy. So it can be seen that both these conceptions: reasonableness in
law and reasonableness in political theory have some obvious commonalities at the level
of their deep justifications; both appeal to liberal, egalitarian and consensus-oriented
values.
Cadmus permanent link: https://hdl.handle.net/1814/8588
ISSN: 1725-6739
Series/Number: EUI LAW; 2008/13
Publisher: European University Institute
Keyword(s): Legitimacy Fundamental (human) rights Judicial review
Published version: http://hdl.handle.net/1814/52126