Magnetism of Moral Reasoning

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Six countries – Canada, Germany, India, Israel, Poland and South Africa – are paradigm examples of modern constitutional systems where rights may be limited through the application of a constitutional limitations clause. In each jurisdiction, the constitutionality of a rights limitation has come to rely on the principle of proportionality, and the key exercise in judicially reviewing a rights limitation is the proportionality analysis.

In the family of constitutional democracies born in the latter twentieth century, constitutional limitations clauses have emerged to manage the conflict between individual rights and the legislative pursuit of broader social objectives. In six paradigm post-war constitutional democracies – Canada, Germany, Israel, India, Poland and South Africa – the principle of proportionality has become the analytical fulcrum of the inquiry into the constitutionality of rights limitations. 

Criticism of the principle of proportionality as a heuristic for limitations analysis has crystallized into three main objections: 

proportionality analysis devalues rights by exposing them to the ordinary processes of political bargaining; 

it offends the rule of law because it involves unpredictable moral reasoning; 

and it involves the unintelligible balancing of incommensurable goods. 

This article considers, first, whether limitations jurisprudence in the paradigm countries contains responses to these objections. It argues that there are ways of meeting the devaluation and incommensurability objections, but suggests that models of analysis that purport to meet the unpredictability objection by minimizing the role of moral reasoning are undermined by the continued judicial reliance on moral reasoning in the paradigm countries. 

The article argues, second, that moral reasoning maintains this magnetic attraction over judges because the conception of the rule of law at work in the paradigm countries, and which judges and other legal officials are committed to upholding, compels judges and legislators to engage directly and fully with the normative commitments a political community makes and which inform its constitution. Because people reasonably disagree over the content and contours of these normative commitments, judges cannot rely on demoralized analysis but must make arguments intended to persuade rational, morally autonomous members of a political community how our most fundamental normative commitments should be understood by the legal system.

ׁׁׂ(This article will be published in the American Journal of Comparative Law (forthcoming, 2018