Rethinking proportionality, rethinking the relation ?balancing? and ?paradigmatic cases? to address the indeterminacy objection.

CLÉRICO LAURA

San Petersburgo

Conferencia; VI International Conference "Theoretical Applied Ethics. Trditions and Prospects"; 2014

Saint Petersburg State University

Conflicts of rights become significant in Constitutional states because of the robust recognition of rights. To that respect it seems hardly conceivable to think that one right in a particular conflict should "exclude" the other right, as would occur if rights were just rules subject exclusively to the method of subsumption. This paper focuses on the reconstruction of the argumentative structure of one form of resolution of conflicts between rights: the proportionality test. Many objections of various sorts have been raised against the rationality of proportionality. In this paper I will address the indeterminacy objection. Since proportionality (and more precisely balancing) consists of an argumentative structure, it does not provide a material solution to a conflict of rights; therefore it could not limit discretionality. It does, however, enable the examiner´s "subjectivity" and, its arbitrariness. Such objection plus the objection to the proportionality´s inflation, according to which everywhere everything would be subjected to balancing, aggravate the practical implications of indeterminacy. My answer to the objection of indeterminacy is based on a demarcation strategy. I argue that the proportionality test is compatible with a model of conflict of rights´ resolution by means of rules resulting from balancing or paradigmatic cases; this enables me to explore the similarities and differences between the balancing model (Alexy) and the paradigmatic cases model (Moreso). I argue that the proposals about the methods to delimit the relevant properties of the normative problem, and the formulation of rules which attempt to solve "univocally all the cases of the universe of discourse", are meant to strengthen the balancing model oriented by rules, which would have the function to constrain and restrict the scope of admissible reconstruction of the conflicts of rights. This is an argument to sustain therefore that not everything involves weighing and balancing (demarcation). This allows me to reinterpret the indeterminacy objection, which would only be directed to balancing in the strict sense as part of the third part of proportionality test. My answer is that even at this stage of the nine-step argumentation process, only one is related to balancing in the concrete case (demarcation). Additionally, I hold that such ?indeterminacy?, implied in balancing, is controlled from a procedural stand point. The balancing assessment, in the context of a constitutional practice, is directed by rules (it is not something ad-hoc). Moreover, it implies taking another look into the work on the net of rules resulting from balancing - and the (net of) paradigmatic cases as proposed by Moreso. Even if a case does not serve to solve a conflict among rights, the net is still useful. It serves to determine the importance of realization, of the intensity of the restriction and the weight of the competing rights, and this takes place, partly, through comparing cases. This will help to support the rationality of the proportionality as a ?constitutional doctrine? which requires, nonetheless, further development.