Rational Lawmaking, Proportionality and Balancing

Law-making, like any normative decision-making, requires justification. A purely formal democratic legitimation by means of voting procedures and a form of majority rule is insufficient, for democratic legitimacy depends on representing the interests of the governed, which requires the balancing of these interests and is only imperfectly reflected in voting procedures. Hence, balancing is the core of rational lawmaking and proportionality is the relevant constitutional standard that guides this balancing. Legislative balancing, however, has features that are distinct from judicial balancing. In particular, it is open because the legislator may, in general, pursue its political objectives without further legitimation and is not necessarily bound to consider only legal principles. It is “pure” insofar as the issue of control and its effects on the structure of balancing is not present in legislative balancing. And it is complex for it is not restricted to claims advanced in a judicial procedure. The aim of this contribution is to analyze the general structure of balancing and to investigate the distinctive features of legislative balancing as a method of rational decision-making.