The criticism on proportionality and a retort

TL;DRAbstract

Proportionality is under constant attack. The criticism against proportionality is primarily aimed at its balancing component, proportionality stricto sensu. This balancing has been referred to as “the enfant terrible of modern judging.” The criticism on judicial balancing does indeed abound. The criticism can be divided into two main categories. The first is internal criticism, examining proportionality from within. The second is external criticism, examining proportionality from a larger legal context. Each of these critiques will be referred to individually. This chapter strives to provide a satisfactory retort. In any event – and that, at the end of the day, is the very basis of my replies – the suggested alternatives are no better. In fact, their defects exceed those of proportionality.

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