Towards a Theory of Balancing and Proportionality: The Point and Purpose of Judicial Review

Kai Möller

in The Global Model of Constitutional Rights

Published in print October 2012 | ISBN: 9780199664603
Published online January 2013 | e-ISBN: 9780191745751 | DOI:

Series: Oxford Constitutional Theory

Towards a Theory of Balancing and Proportionality: The Point and Purpose of Judicial Review

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This chapter proposes an account of the point and purpose of judicial review under the global model, which reflects attractive conceptions of the values of democracy (political autonomy) and the separation of powers. It argues that constitutional rights and policy-making are both oriented towards personal autonomy and that, in particular, policies ought never to be concerned with the well-being of the citizens. Relying on a reinterpretation of Mattias Kumm's work, the chapter shows that for a policy to be constitutionally legitimate and democratic properly understood, it must represent a reasonable, as opposed to the one correct, specification of the spheres of autonomy of equal citizens. It further shows that there is no need for a free-standing right to equality or a right to non-discrimination. Finally, the chapter argues that it is plausible to assume that courts will possess the institutional competence of assessing constitutional legitimacy under the reasonableness standard required by the global model; and the implications of this result for a doctrine of deference are explored.

Keywords: political autonomy; personal autonomy; judicial review; equality; right to equality; democracy; separation of powers; institutional competence; reasonableness; Kumm; well-being; deference

Chapter.  15111 words. 

Subjects: Constitutional and Administrative Law

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