Is it Really That Easy? A Critique of Proportionality and ‘Balancing as Reasoning’

The proportionality test is the subject of much debate, both in academia and in the legal community. In a recent article, Kai Möller presents a powerful defence of proportionality in reply to objections made against it. The reply is premised on a distinct account of proportionality, which has become prominent in recent writings of proponents of this test, and which is different from other more traditional accounts. Here I aim to clarify this change in the understanding of proportionality, its importance for the proportionality debate, and to offer a critique of it. This version of proportionality would sacrifice many important features of the rule of law, and, crucially, it would offer no guidance to judges, thus diminishing the likelihood of judges arriving at a reasonable solution to the case and fulfilling important values at stake in legal adjudication.