Abstract
A correct understanding of balancing discretion shows how proportionality works as an internal limit of discretion and how suitability, necessity and proportionality in the narrow sense constrain the choices to be made by a legislative normative authority. On the other hand, an accurate contraposition between the laws of balancing (the content of proportionality in the narrow sense) and Alexy’s Weight Formula leads to the conclusion that this equation does not express (as it should) the role those laws have in constraining the range of choice presented by “prima facie discretion”. Coming from the problems therein detected, a new formula is presented; a formula that fully matches the substantive and the epistemic laws and that, to satisfy its function of internal justification of a balancing decision, only entails the variables those laws support.
I am deeply thankful to Margarida Duarte for her support with the mathematical features of proportionality. For their critical approach, I am also grateful to Miodrag Jovanović, Bojan Spaić, Wojciech Załuski and Katarzyna Eliasz (Belgrade Seminar), Robert Alexy, Jan Sieckmann, Laura Clerico, Martin Borowski, Matthias Klatt, Carsten Bäcker and Daniel Oliver-Lalana (Erlangen Seminar), and Pedro Moniz Lopes, Jorge Silva Sampaio and Ana Escher from our Lisbon Legal Theory Group.
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Notes
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Provided that the legal order at hand entails a principle of proportionality, a contingent state of affairs (as with all norms enacted by normative authorities or produced by customary sources). As a matter of fact, it is not impossible (although absurd) to insert into a constitution a principle of disproportionality. On the contingency of the content of legal orders, Bulygin (2010), p. 285; Mendonca (2000), p. 63. Differently, claiming the universality of proportionality, Sieckmann (2018), p. 4; Klatt and Meister (2012), p. 1.
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If for “norm sentence” we understand a closed text strictly expressing the totality of elements that match a certain criterion of norm individuation (NS → N). Obviously, as an utterance, a norm sentence (understood just as a written text) can entail an unlimited quantity of norms (NS → N1 ∧ N2), something quite common in long constitutional articles (for instance, article 26/1 of the Portuguese Constitution has, at least, seven norms).
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For instance, the syntactical uncertainty provided by the disjunctive or conjunctive use of the word “and”: in a norm sentence expressing “O q ∨ r “and” s”, we can read the following possible norms “O q ∧ s”, “O r ∧ s”, or “O q ∨ r ∨ s”. The discretion present is, however, and regardless of its own proper scheme, totally due to a linguistic uncertainty.
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Wróblewski (1992), p. 289; Moreso and Vilajosana (2004), p. 106. It is relevant to note, however, that any kind of uncertainty coming from the norm of conflicts (its sentence) is necessarily due to linguistic indeterminacy, which means, evidently, that in this case we are again within the first category of constitutional discretion.
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Moreso (2002), p. 21; Chiassoni (2019), p. 189. One note: it is only based on statistical preponderance that principles are being used as examples of constitutional norms in a conflict conferring balancing discretion (Pino [2014], p. 612). Since rules are as defeasible as principles (and in the same way), nothing prevents similar constitutional conflicts with rules.
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Internal limits of discretion can provide, then, a total “reduction of discretion to zero” or, differently, a maintenance of alternatives (same or less than initially): here, without legal parameters, judicial review is constitutionally forbidden. Framing the problem as one of competence, Alexy (2016), p. 69; Bernal Pulido (2009), p. 116.
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The (negative powers) double triadic scale will be used in the next example. Later on, a more precise explanation for this scale will be given. On the other hand, and just for the sake of simplicity, it is assumed that each premise contributes with the same weight to the overall degree of certainty given to the premises related to a specific P. However, and obviously, this is just a simplification (it is possible but not necessary).
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In other words, certainty means that classification balancing is dispensable.
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It must be said that the values with negative powers are just to classification balancing (and Alexy’s Weight Formula). To the Positivist Weight Formula, as it will be seen later on, only the values with positive powers are needed (and regarding the measurement of “certainty” one only has to substitute “gain or loss” by “certainty”).
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It has to be stressed that, with the stalemate, what is given is a choice on intensities of interference (bringing with them specific uncertainties). Thus, classification balancing does not deal directly with empirical uncertainty.
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Given that there are two alternative uncertainties (because they come with the most pessimistic interference and with the most certain one), with the stalemate we will insert in variable Re of the Weight Formula one of those degrees of uncertainty (the one corresponding to the intensity chosen); then, the Weight Formula will always receive a «certain» amount of uncertainty independently from how uncertain we are about the degree of uncertainty.
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Alexy (2002), pp. 415, 421.
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This criticism already in Klatt and Schmidt (2012), p. 87.
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There has been some divergence on the wording of both laws of balancing, specifically regarding the epistemic one. For instance, Julian Rivers formulates the second law as follows: “the more serious a violation of a right is, the greater must be the reliability of the legislature’s assessment that a competing interest will be realized to a sufficiently great extent” (2007, p. 183). Matthias Klatt and Johannes Schmidt put it as follows: “the more serious an interference with a principle Pi is, the more certain must be those premises that justify the classification of intensity of interference Ii” (2012, p. 85). No doubt about the importance of the wording. However, as a part of proportionality, the main point is that its core has to be intersubjectively defended from specific theories or perspectives. Thus, it is with the purpose of preserving that core that such an aseptic wording (as the one above) was conceived.
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Because it turns out that such a thing as «epistemic discretion», understood as the variation regarding what we know about one possible world at some specific time, does not exist: in a space-time point, we know what we know. What exists, instead, is the discretion related to the measurement of how much we do know (this is, the quantification of losses, gains and certainties).
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Being this a coherent outcome with what has been previously said: if our knowledge is what it is, the sole possibility of discretion in the epistemic realm comes from the uncertainties about the “quantification” of that knowledge.
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Of course, there are also ratios in “gains necessity” and in “losses necessity”. However, the purpose here is just to isolate the cases where there are no equal gains or equal losses (and name them as “ratio necessity”).
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Similarly, Sartor (2018), p. 629.
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Because with equal ratios, the solution is undisputed: necessity never implies disproportionality.
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With a good example for this claim, Sartor (2010), p. 198.
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Which seems to be, thus, the main reason say that necessity is the strongest test among all given by proportionality. On this test as the strongest one, Klatt and Meister (2012), p. 90; Petersen (2017), p. 100. Specifically on the problems posed by Pareto optimality in balancing, Chapman (2013), p. 267.
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This is R2 and R3. As probably noted, R1 (inaction) has been discarded. The reason is simple: considering the threat the disease is for human life, R1 would bring into the analysis the norm (P) conferring the right to be alive. However, since such move implies abandoning the model of two Ps, it would change the matrix of the present exercise.
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Then, while in necessity two Rs (or more) are compared, in proportionality in the narrow sense only one R is on the table. For this reason, in the latter the contraposition is strictly realized between principles (effective place of balancing). It is difficult to understand, therefore, the connection between balancing and necessity that is mentioned by Sieckmann (2012), p. 93, or the so called “balancing necessity” described by Sartor (2010), p. 203.
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Indifference is usually represented by a convex curve bending to the left (Sieckmann 2012, p. 90; Rivers 2007, p. 174). However, this convexity signals the decreasing marginal rate of substitution (when the same degree of higher satisfaction of one P does not substitute the same degree of lower satisfaction of the other), which implies that whenever this marginal rate is constant (perfect substitutes) the curve of indifference becomes linear (Varian 2005, p. 39; Banerjee 2015, p. 42). Given that this feature (perfect or imperfect substitution) is irrelevant for the present purposes (conflicts of principles do not necessarily imply the marginal rate of substitution to decrease; it is a strict contingent effect), nothing prevents indifference to be linearly represented. On conflicts between principles with convexity, Sartor (2010), p. 193. On indifference, Steiner (1994), p. 156; Kolmar (2017), p. 150.
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Evidently, we may compare as many Rs as we want with the constant of direct proportionality. The main point is that, differently from indifference, where the information given by its curve is useful for the comparison between Rs, with the constant of those laws the information given by its curve is only useful for evaluating how much one specific R is satisfying and unsatisfying the conflicting Ps.
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Which means that, for the cases where the conflict between two Ps is (empirically) compatible with all the Rs under the inverse satisfiability of both Ps (as in [lxxiii]), the constant is on the curve of possible cumulative satisfaction of both Ps (this is, 28 [256]). Consequently, in these specific cases, a R above is impossible, a R on the curve is optimal and proportional in the narrow sense. However, below, besides non-optimal (already disapproved in the necessity test), it would never be proportional in the narrow sense.
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Therefore, and differently from the previous proportionality tests, where each one is a necessary condition to the subsequent, the order of the substantive and the epistemic laws is merely a matter of convention.
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Evidently, it is not an option to change the laws of balancing in order to make them agree with the equation (as suggested by Pulido 2006, p. 105).
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Which also means that the quotient of the Weight Formula is mute about the quotient of interferences between P1 and P2 and also mute about which law of balancing has been violated. This is a serious problem affecting the whole equation, coming from the fact that its internal engineering is completely based on trade-offs among variables (I, W, Re, and Rn); however, and rigorously, these internal trade-offs are exactly the opposite of what the laws of balancing are all about (on the trade-offs within the Weight Formula, Lindahl 2009, p. 361).
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On the rule of the Weight Formula, Alexy (2003), p. 444.
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Meaning that it is not uncertain because of empirical uncertainties.
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For the simple reason that an uncertainty about a gain (or a loss) can cause both a higher or a lower intensity of interference. It is a problem of not knowing the precise value of the interference and not a causal connection between a degree of ignorance and a lower impact an interference has in the quotient of the Weight Formula.
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Consequently, the epistemic law asks for certainties about the world (empirical) in connection to a specific amount of losses, regardless of these being certain or uncertain, which has to be seen as a different problem, irrelevant for the definition of the scope of certainty.
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Since there are no losses without gains (and vice-versa [even if not symmetrical]), not considering all the underlying premises would be a distortion of the overall consequences of a R. Since the rationale of the epistemic law is that we accept some losses when we have good knowledge about the world, then, given that gains are a necessary condition for losses, we cannot put apart the underlying premises of gains. How could we accept some losses if we do not take into account our degree of knowledge about the gains we are going to obtain with those losses?
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Obviously, only when the measurement of gains, losses and certainties is not totally certain (this is, when there is discretion of quantification).
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Which means that the review device can serve both a normative and a descriptive functions: the former when imposing which should be the margin of self-restraint, the latter when describing which was the real margin.
References
Alexy R (2002) Theory of constitutional rights. Oxford University Press, Oxford
Alexy R (2003) On balancing and subsumption. A structural comparison. Ratio Juris 16(4):433–449
Alexy R (2006) Discourse theory and fundamental rights. In: Menéndez A (ed) Arguing for fundamental rights. Springer, Dordrecht, pp 15–32
Alexy R (2010) In: Clérico L, Sieckmann J (eds) La Construcción de los Derechos Fundamentales. Derechos Fundamentales, Princípios y Ponderación. Comares, Granada, pp 1–15
Alexy R (2014) Formal principles: some replies to critics. Int J Const Law 12:511–524
Alexy R (2016) Constitutional rights and constitutional review. In: Himma K (ed) Fundamental rights, justification and interpretation. Eleven, Den Haag, pp 63–74
Alexy R (2017) The absolute and the relative dimensions of constitutional rights. Oxford J Legal Stud 37:31–47
Banerjee S (2015) Intermediate microeconomics. Routledge, New York
Barak A (2012) Proportionality. Cambridge University Press, Cambridge
Bernal Pulido C (2007) El Princípio de Proporcionalidad y los Derechos Fundamentales, 3rd edn. Centro de Estudios Políticos y Constitucionales, Madrid
Bernal Pulido C (2009) El Neoconstitucionalismo y la Normatividad del Derecho. Externado, Bogotá
Bird A (1998) Philosophy of science. Routledge, London
Borowski M (2010) La Sujeición a Determinaciones del Legislador en la Ponderación de Derechos Fundamentales. Cambridge. In: Clèrico L, Sieckmann J (eds) Derechos Fundamentales, Princípios y Ponderación. Comares, Granada, pp 111–145
Borowski M (2013) On apples and oranges. Comment on Niels Petersen. German Law J 14:1409–1420
Brożek B (2007) The weight formula and argumentation. In: Pavlakos G (ed) Law, rights and discourse. Hart Publishing, Oxford, pp 319–330
Bulygin E (2010) Sobre la Equivalencia Pragmática entre Permiso y No Prohibición. Doxa 33:283–296
Chapman B (2013) Incommensurability, proportionality, and defeasibility. Law Probability Risk 12:259–274
Chiassoni P (2019) La Balanza Inexistente. Analisi e Diritto 2:165–231
Clérico L (2009) El Examen de Proporcionalidad em el Derecho Constitucional. Eudeba, Buenos Aires
Clérico L (2018) Proportionality in social rights adjudication: making it workable. In: Duarte D (ed) Proportionality in law. Springer, Cham, pp 49–70
Duarte D (2015) Analogy and Balancing: The Partial Reducibility Thesis and its Problems. Revus 25:1–11
Duarte D (2018) Norms on Language and the Regulativeness of Constitutive Norms. Diritto Questione Publiche XVIII(1):135–156
Eriksen E (2006) Democratic or Jurist-Made law? In: Menéndez A (ed) Arguing for fundamental rights. Springer, Dordrecht, pp 69–100
Escher A (2019) When it is vague what is vague: identifying vagueness. In: Duarte D (ed) Legal interpretation and scientific knowledge. Springer, Cham, pp 161–186
Golding M (2018) Argument by analogy in the law. In: Kaptein H (ed) Analogy and exemplary reasoning in legal discourse. Amsterdam University Press, Amsterdam, pp 123–136
Guibourg R (2010) On Alexy’s weighing formula. In: Sieckmann J (ed) Legal reasoning: the methods of balancing. Franz Steiner Verlag, Stuttgart, pp 145–160
Hansson S (2013) The varieties of permission. In: Gabbay D (ed) Handbook of deontic logic and normative systems. College Publications, Milton Keynes, pp 195–240
Hart H (2013) Discretion. Harv Law Rev 127:652–665
Klatt M (2007) Taking rights less seriously: a structural analysis of judicial discretion. Ratio Juris 20:506–529
Klatt M, Meister M (2012) The constitutional structure of proportionality. Oxford University Press, Oxford
Klatt M, Schmidt J (2012) Epistemic discretion in constitutional law. Int J Const Law 10:69–105
Kolmar M (2017) Principles of microeconomics. Springer, Cham
Lassiter D (2009) The Algebraic Structure of Amounts: Evidence from Comparatives. In: Proceedings of the 14th Student Session of ESSLLI. ESSLLI, Bordeaux, pp 51–61
Lindahl L (2009) On Robert Alexy’s weight formula for weighing and balancing. Liber Amicorum de José de Sousa Brito. Almedina, Coimbra, pp 355–376
Lipton P (1991) Inference to the best explanation, 2nd edn. Routledge, London
Mendonca D (2000) Las Claves del Derecho. Gedisa, Barcelona
Moreso JJ (2002) Conflitti tra Princìpi Costituzionali. Diritto & Questioni Pubbliche 2:19–24
Moreso JJ (2007) Alexy y la Aritmética de la Ponderación. In: Garcia Manrique R (ed) Derechos Sociales y Ponderación. Fundación Coloquio Jurídico Europeu, Madrid, pp 223–247
Moreso JJ (2017) Marry me a little. How much precision is enough in law? Droit & Philosophie 9:45–68
Moreso JJ, Vilajosana JM (2004) Introducción a la Teoría del Derecho. Marcial Pons, Madrid
Navarro P, Rodríguez J (2014) Deontic logic and legal systems. Cambridge University Press, Cambridge
Niiniluoto I (2004) In: Niiniluoto I (ed) Induction. Handbook of epistemology. Springer, Dordrecht, pp 521–548
Nino CS (2003) Introducción al Análisis del Derecho, 11th edn. Ariel, Barcelona
Olsson E (2007) Reliabilism, stability, and the value of knowledge. Am Philos Q 44(4):343–355
Petersen N (2017) Proportionality and judicial activism. Cambridge University Press, Cambridge
Pinker B (2013) Proportionality analysis and models of judicial review. Europa Law Publishing, Groningen
Pino G (2014) Proporzionalità, Diritti, Democrazia. Diritto e Società 3:597–628
Pulido B (2006) On Alexy’s weight formula. In: Menéndez A (ed) Arguing for fundamental rights. Springer, Dordrecht, pp 101–110
Ratti GB (2018) Tres Addenda a Sistemas Normativos. Doxa 41:85–99
Rivers J (2007) Proportionality, discretion and the second law of balancing. In: Pavlakos G (ed) Law, rights and discourse. Hart Publishing, Oxford, pp 167–188
Sardo A (2018) Let’s talk about antinomies. Normative systems reloaded. Revus 36:53–79
Sartor G (2010) Doing justice to rights and values: teleological reasoning and proportionality. Artificial Intelligence Law 18:175–215
Sartor G (2013) The logic of proportionality: reasoning with non-numerical magnitudes. German Law J 14:1419–1456
Sartor G (2018) A quantitative approach to proportionality. In: Bongiovanni G, Postema G et al (eds) Handbook of legal reasoning and argumentation. Springer, Dordrecht, pp 613–635
Sauerland U, Stateva P (2011) Two types of vagueness. In: Égré P, Klinedinst N (eds) Vagueness and language use. Palgrave MacMillan, London, pp 121–145
Shope R (2004) The analysis of knowing. In: Niiniluoto I (ed) Handbook of epistemology. Springer, Dordrecht, pp 283–330
Sieckmann J (2010) Balancing, optimisation, and Alexy’s “Weight Formula”. In: Sieckmann J (ed) Legal reasoning: the methods of balancing. Franz Steiner Verlag, Stuttgart, pp 101–118
Sieckmann J (2012) The logic of autonomy. Hart Publishing, Oxford
Sieckmann J (2018) Proportionality as an universal human rights principle. In: Duarte D (ed) Proportionality in law. Springer, Cham, pp 3–24
Steiner H (1994) An essay on rights. Blackwell, Oxford
Tushnet M (2008) Weak courts, strong rights. Princeton University Press, Princeton
Varian H (2005) Intermediate microeconomics, 7th edn. W. W. North & Company, New York
Walker V et al (2015) Representing the logic of statutory rules in the United States. In: Araszkiewicz M (ed) Logic in the theory and practice of lawmaking. Springer, Cham, pp 357–381
Wróblewski J (1992) The judicial application of law. Springer, Dordrecht
Young K (2010) A tipology of economic and social rights adjudication: exploring the catalytic function of judicial review. Int J Const Law 8:385–420
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Duarte, D. (2021). From Constitutional Discretion to the Positivist Weight Formula. In: Sieckmann, JR. (eds) Proportionality, Balancing, and Rights . Law and Philosophy Library, vol 136. Springer, Cham. https://doi.org/10.1007/978-3-030-77321-2_2
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