The Magnetism of Moral Reasoning and the Principle of Proportionality in Comparative Constitutional Adjudication
Bibliographic record
Abstract
In the family of constitutional democracies born in the latter twentieth century, constitutional limitations clauses have emerged to manage the conflict between individual rights and the legislative pursuit of broader social objectives. In six paradigm post-war constitutional democracies – Canada, Germany, Israel, India, Poland and South Africa – the principle of proportionality has become the analytical fulcrum of the inquiry into the constitutionality of rights limitations. Criticism of the principle of proportionality as a heuristic for limitations analysis has crystallized into three main objections: proportionality analysis devalues rights by exposing them to the ordinary processes of political bargaining; it offends the rule of law because it involves unpredictable moral reasoning; and it involves the unintelligible balancing of incommensurable goods. This article considers, first, whether limitations jurisprudence in the paradigm countries contains responses to these objections. It argues that there are ways of meeting the devaluation and incommensurability objections, but suggests that models of analysis that purport to meet the unpredictability objection by minimizing the role of moral reasoning are undermined by the continued judicial reliance on moral reasoning in the paradigm countries. The article argues, second, that moral reasoning maintains this magnetic attraction over judges because the conception of the rule of law at work in the paradigm countries, and which judges and other legal officials are committed to upholding, compels judges and legislators to engage directly and fully with the normative commitments a political community makes and which inform its constitution. Because people reasonably disagree over the content and contours of these normative commitments, judges cannot rely on de-moralized analysis but must make arguments intended to persuade rational, morally autonomous members of a political community how our most fundamental normative commitments should be understood by the legal system.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.030 | 0.040 |
| Meta-epidemiology (narrow) | 0.000 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.003 | 0.002 |
| Science and technology studies | 0.006 | 0.074 |
| Scholarly communication | 0.009 | 0.016 |
| Open science | 0.002 | 0.007 |
| Research integrity | 0.004 | 0.007 |
| Insufficient payload (model declined to judge) | 0.003 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".