Balancing, Subsumption, and the Constraining Role of Legal Text

Frederick Schauer

in Institutionalized Reason

Published in print February 2012 | ISBN: 9780199582068
Published online May 2012 | e-ISBN: 9780191739354 | DOI:
Balancing, Subsumption, and the Constraining Role of Legal Text

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While Alexy makes a persuasive case for the non-irrationality of proportionality-based decision-making, he is less persuasive when it comes to comparing that admittedly rational process with another rational process — that of subsumption under canonical rules. Alexy characterizes the move from premises to conclusion in subsumption as one of logic and in balancing as closer to arithmetic, but in making the case for the rationality of the latter he comes close to treating the two as equally rational in formal terms and, more importantly, equally objective. Alexy does not claim, of course, that either is a totally objective process, especially for the hard cases that are likely to wind up in appellate courts. But he does treat subsumption and proportionality-type balancing as constraining to a roughly equivalent extent by virtue of the formal rationality of each, and it is this particular claim that is challenged in this chapter.

Keywords: proportionality-based decision-making; Robert Alexy; subsumptionm; canonical rules

Chapter.  5378 words. 

Subjects: Jurisprudence and Philosophy of Law

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