Rethinking proportionality to address the indeterminacy objection

CLÉRICO LAURA

About Alexy and his Theory of Law

Elsevier

Año: 2016;

In particular, I weaken the objection of indeterminacy, many times linked to the objection of balancing hyperinflation. My answer is based on a demarcation strategy in three moments. The proportionality test is compatible with a model of conflict of rights´ resolution by means of rules resulting from balancing or paradigmatic cases; therefore not everything involves weighing and balancing (first demarcation). The proportionality test includes two (sub) tests that examine whether the restriction of the right could have been avoided, unrelated to weighing procedures (second 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 (third 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). At last, working over the indeterminacy objection will allow us to reconstruct the proportionality test. This will help to support the rationality of the proportionality test as a ?constitutional doctrine? which requires, nonetheless, further development.