Chapter

Epistemic Reliabilities in Proportionality Analysis

Matthias Klatt and Moritz Meister

in The Constitutional Structure of Proportionality

Published in print July 2012 | ISBN: 9780199662463
Published online September 2012 | e-ISBN: 9780191743405 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199662463.003.0007
Epistemic Reliabilities in Proportionality Analysis

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Proportionality analysis and balancing are very complex, but their complexity increases significantly if both empirical and normative premises used in legal argument are epistemically unreliable. This chapter distinguishes different degrees of epistemic reliability and demonstrates how do deal with them in proportionality analysis. A new type of balancing — classification balancing — is developed, and the real epistemic discretion — hitherto unknown — is identified. A new variable representing the reliability of normative premises is introduced into the weight formula. The relevance of epistemic discretion for judicial review is elaborated on, based on a new two-level model. The relevance of formal principles is discussed in detail.

Keywords: reliability; epistemic discretion; judicial review; weight formula; formal principles

Chapter.  17322 words. 

Subjects: Constitutional and Administrative Law

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