14 German L.J. 1387 (2013)
How to Compare the Length of Lines to the Weight of Stones: Balancing and the Resolution of Value Conflicts in Constitutional Law

handle is hein.journals/germlajo14 and id is 1404 raw text is: How to Compare the Length of Lines to the Weight of Stones:
Balancing and the Resolution of Value Conflicts in
Constitutional Law
By Niels Petersen
A. Introduction
The principle of proportionality is on the rise. A growing number of constitutional and
international courts refer to some form of proportionality in their jurisprudence.' At the
same time, the principle is receiving more and more attention in international legal
scholarship. Yet proportionality has not remained uncontested. In particular, some scholars
have severely criticized the core of the proportionality test, which involves a balancing of
competing values. This balancing is accused of being irrational because it requires placing
incommensurable values on the same scale.2 In a famous dictum, Judge Scalia once
claimed that balancing competing constitutional values is like determining whether a
particular line is longer than a particular rock is heavy.
Constitutional courts often have to resolve conflicts between competing values. These may
be conflicts between an individual right and a public interest or between two competing
individual rights. They have to strike a balance between individual freedom and public
security or between the freedom of the yellow press and the right to privacy of celebrities.
The proportionality principle provides a means for the resolution of conflicting
constitutional values. The advantage of balancing is that it avoids the creation of abstract
Dr. iur. Senior Research Fellow at the Max Planck Institute for Research on Collective Goods, Bonn. E-mail:
petersen@coll.mpg.de.
1See AHARON BARAK, PROPORTIONALITY-CONSTITUTIONAL RIGHTS AND THEIR LIMITATIONS 181-210 (2012).
2 See BERNHARD SCHLINK, ABWAGUNG IM VERFASSUNGSRECHT 134-35 (1976); T. Alexander Aleinikoff, Constitutional Law
in the Age of Balancing, 96 YALE L.J. 943, 972-76 (1987); JURGEN HABERMAs, BETWEEN FACTS AND NORMS:
CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY 259 (1996); RALPH CHRISTENSEN & ANDREAS FISCHER-
LESCANO, DAs GANZE DES RECHTS-VoM HIERARCHISCHEN ZUM REFLEXIVEN VERSTANDNIS DEUTSCHER UND EUROPAISCHER
GRUNDRECHTE 357 (2007); Tavros Tsakyrakis, Proportionality: An assault on human rights?, 7 INT'L.J. CONST. L. 468,
474 (2009); GREGOIRE C.N. WEBBER, THE NEGOTIABLE CONSTITUTION 92-93 (2009).
3 See BendixAutolite Corp. v. Midwesco Enter., Inc., 486 U.S. 888, 897 (1988).

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