A. A Theory of Constitutional Rights

According to the TCR, fundamental rights and collective interests are principlesFootnote ¹⁷—that is, normative statements expressing permissions, commands, or prohibitions.Footnote ¹⁸ For Alexy, principles differ structurally from rules.Footnote ¹⁹ Principles are not just “general rules.” Rules are definitive requirements that are applied by subsumption: if a rule applies, the normative consequence must follow. Principles, on the other hand, are optimization requirements—that is, norms requiring something to be realized to the greatest extent possible, given the factual and legal possibilities at hand.Footnote ²⁰

The distinction becomes more apparent when we look at conflicts of rules and conflicts of principles. Two rules providing for inconsistent legal ought-judgments cannot be applicable at the same time. A conflict of rules is thus solved either by formulating an exception to one of them or by declaring at least one invalid.Footnote ²¹ Conflicts of principles do not operate in that way. If two principles provide inconsistent normative requirements, one of them must be “outweighed.” Here it should not be considered that the principle outweighed is therefore invalid, nor that an exception has been built into it. In other circumstances, the question of precedence may have to be reversed.Footnote ²²

In every conflict of principles, then, a “conditional relation of precedence” must be established, as one principle is to take priority in the particular case. Consider, for instance, the statement of the German Federal Court in a case involving the right to life and bodily integrity, on the one hand, and the principle promoting the proper functioning of the judicial system, on the other.

In this case, the ruling of the German Federal Court established a relation of precedence where, for the tribunal, it was justified to prefer the right to life and bodily integrity (P_i) over the principle requiring a proper functioning of the criminal system (P_j) in the particular circumstances where a person's life would be in danger should the trial continue.

But now the question is: How are we to determine such relations of precedence? How is “balancing” to be done? As it turns out, the justification of a relation of precedence between principles is a matter of applying the principle of proportionality.

B. The Principle of Proportionality

Alexy submits that the nature of principles entails the principle of proportionality and vice versa.Footnote ²⁴ The reason is that proportionality is required to determine whether an interference with a principle is justified.Footnote ²⁵ Proportionality is composed of three subprinciples:Footnote ²⁶ suitability, necessity, and proportionality in the narrow sense. These subprinciples determine whether it is justified to satisfy one principle through a measure that, at the same time, interferes with another principle. The subprinciple of suitability requires that the measure is adequate to satisfy the principle it intends to satisfy. It excludes unsuitable alternatives.Footnote ²⁷ The subprinciple of necessity requires that the end sought “cannot well equally be achieved by the use of other means less burdensome.”Footnote ²⁸ And the principle of proportionality in the narrow sense can be expressed by the “Law of Balancing”: “The greater the degree of non-satisfaction of, or detriment to, one principle, the greater must be the importance of satisfying the other.”Footnote ²⁹ Particular attention to the balancing stage will be paid here.

Balancing can be broken down into three stages. Assume a particular balance of two principles, P_i and P_j. The first stage is a matter of establishing the degree of non-satisfaction of P_i. The second is a matter of establishing the degree of satisfaction of P_j. And the third stage is about judging whether the importance of satisfying P_j justifies the detriment to P_i. The way in which judgments are made in the first two stages is through a triadic scale representing different degrees of intensity. Thus, the degree of non-satisfaction of P_i (I_i) and satisfaction of P_j (I_j) can be classified as either light (l), moderate (m), or serious (s).Footnote ³⁰ Alexy insists that, for these considerations to be rational, they must be capable of being presented in an inferential system.Footnote ³¹ Hence a “Weight Formula” is proposed. The simplest form is the one in which only I_i and I_j are considered:

$$W_{i, \;\;j} = \displaystyle{{I_i} \over {I_j}}$$

(W_i, _j stands for the concrete weight of the principle whose violation is being examined, which is P_i)

In the simple formula, no consideration is given to the abstract weights of the competing principles (W_i, W_j), nor the reliability of the empirical and normative epistemic assumptions concerning what the measure in question means in the concrete case for both principles (R_i, R_j).Footnote ³² If so, a complete form of the Weight Formula can be represented as follows:

$$W_{i, \;\;j} = \displaystyle{{\;I_i\cdot W_i\cdot R_i\;\;\;} \over {I_j\cdot W_j\cdot R_j}}$$

Graduation in abstract weights and empirical assumptions can certainly be of importance when analyzing concrete cases. For the sake of expositive simplicity, however, let us assume that constitutional principles’ abstract weights will generally (at least in hard proportionality cases, which is our subject) be “the same”Footnote ³³ and that we can dispense with the issue of epistemic uncertainty about the empirical and normative impacts of a given measure. Let us work only with concrete degrees of interference and importance and see how, according to Alexy's account, they determine relations of precedence.

Here we can work just with the classification (l)-(m)-(s), or attempt, like Alexy, a numerical representation by assigning numbers to each category, where:

$$\eqalign{& l = 2^0 = 1 \cr & m = 2^1 = 2 \cr & s = 2^2 = 4} $$

In the third stage of balancing, we should answer the question of whether or not the degree of non-satisfaction of P_i is justified by the satisfaction of P_j. If we follow the Law of Balancing, we will have three possible bundles of situations. First, we have a bundle of possible situations in which P_i takes precedence over P_j. The relation of precedence is numerically represented by a number higher than 1.

(1)$$\displaystyle{{{\rm I}_{i( s ) }} \over {{\rm I}_{\,j( l ) }}} = \displaystyle{4 \over 1} = 4$$

(2)$$\displaystyle{{{\rm I}_{i( s ) }\;} \over {{\rm I}_{\,j( m ) }}} = \displaystyle{4 \over 2} = 2$$

(3)$$\displaystyle{{{\rm I}_{i( m ) }} \over {{\rm I}_{\,j( l ) }}} = \displaystyle{2 \over 1} = 2$$

Second, there would also be a bundle of cases where P_j takes precedence over P_i. Here the relation of precedence can be represented by a number lower than 1.

(1)$$\displaystyle{{{\rm I}_{i( l ) }} \over {{\rm I}_{\,j( s ) }}} = \displaystyle{1 \over 4} = 0.25$$

(2)$$\displaystyle{{{\rm I}_{i( m ) }\;} \over {{\rm I}_{\,j( s ) }}} = \displaystyle{2 \over 4} = 0.5$$

(3)$$\displaystyle{{{\rm I}_{i( l ) }} \over {{\rm I}_{\,j( m ) }}} = \displaystyle{1 \over 2} = 0.5$$

Finally, there would be three possible situations of “stalemate,” where there is no relation of precedence.

(1)$$\displaystyle{{{\rm I}_{i( l ) }} \over {{\rm I}_{\,j( l ) }}} = \displaystyle{1 \over 1} = 1$$

(2)$$\displaystyle{{{\rm I}_{i( m ) }\;} \over {{\rm I}_{\,j( m ) }}} = \displaystyle{2 \over 2} = 1$$

(3)$$\displaystyle{{{\rm I}_{i( s ) }} \over {{\rm I}_{\,j( s ) }}} = \displaystyle{4 \over 4} = 1$$

For Alexy, in stalemate situations balancing determines no result. It is permitted either to perform the measure in question (interference with P_i) or not.Footnote ³⁴ The legislator would enjoy the freedom to “decide as he [sic] wishes.”Footnote ³⁵ Of course, decisions made by means of balancing can always be contested, although Alexy reminds us that contestability does not imply irrationality.Footnote ³⁶ Balancing can be considered a rational device if it is possible to justify the kind of judgments the Law of Balancing requires. The problem of comparability, in that sense, represents a problem for the rationality of balancing insofar as it challenges the idea that comparative judgments among fundamental principles are possible.

A. Noncomparability and Incommensurability

A noncomparability argument might be found in one of Webber's critiques of proportionality. He argues that, under the proportionality principle, “judges and scholars rarely identify a common criterion” for evaluating the weights of competing principles.Footnote ⁴⁷ In Webber's view, proportionality does not direct judges to “identify a value that ought to be maximized,” but to optimize both principles in their own terms, without a common standard to measure their relative weights.Footnote ⁴⁸ For him, the problem of proportionality as a method is that “no common measure is appealed to, and, thus, no comparison of the intensity of the interference of one principle with another is possible.”Footnote ⁴⁹

But this is not a powerful critique. Alexy would reply that there is indeed a “common perspective,” a covering consideration, under which comparisons are made: “constitutional importance.”Footnote ⁵⁰ Of course, one might debate whether “constitutional importance” is a covering consideration or just a placeholder for whatever matters.Footnote ⁵¹ Be that as it may, it seems that the proportionalist would rapidly clarify that proportionality does consider a covering consideration that covers principles in conflict, whether or not one succeeds in determining it accurately. After all, the specification of a covering consideration need not be obvious. Substantive disagreement about what “constitutional importance” means is possible. Some candidates for covering considerations in hard choices concerning principles may refer to “justice,” “common good,” “fairness,” “respect for human dignity,” “utility,” and so on. There is even the possibility that a more comprehensive value (perhaps nameless) that accounts for the comparability among the candidates can serve as the covering consideration in hard choices.Footnote ⁵²

What about the incommensurability problem?Footnote ⁵³ Does proportionality assume commensurability? Yes, it does. Recall that Alexy proposes that the degrees of interference with, and satisfaction of, constitutional principles can be measured through the “triadic scale”: light–medium–serious. These degrees of intensity are assigned numbers in his Weight Formula,Footnote ⁵⁴ such that the triadic light–medium–serious can be represented numerically by the numbers 1, 2, and 4 respectively. Proportionality, in this sense, proposes an underlying cardinal measure in terms of which degrees can be grouped as “light,” “medium,” and “serious.”Footnote ⁵⁵

The next issue is whether proportionality recommends commensurating what is, in fact, incommensurable. Here it seems that Alexy would concede that degrees of satisfaction and non-satisfaction of constitutional principles need not be understood in precise magnitudes. Indeed, he accepts that instead of a triadic scale, one could think in simpler or more complex scales of measurement.Footnote ⁵⁶ His insistence on a triadic scale, arbitrary as it is, does not seem to hold that constitutional principles are commensurable in the sense that they can be compared cardinally in a precise manner. I think he would accept that these magnitudes are imprecise in nature—that is, incommensurable.

But before adjudicating a win to the incommensurabilist, we need to ask whether incommensurability has the practical effect its proponents think it has. Indeed, it is often thought that incommensurability precludes rational choice between items. This would amount to the claim that incommensurability entails either incomparability or vagueness. But that is not the case. Incommensurability means only that precise cardinal comparison is not possible. But cardinal comparison between incommensurables can also be imprecise. Footnote ⁵⁷ Perhaps a triadic scale purporting to represent degrees of satisfaction and non-satisfaction of constitutional principles is an unhelpful metaphor, but Alexy is right to defend the intuition that principles can be interfered with, or satisfied in, greater or lesser degrees.Footnote ⁵⁸ We can certainly perceive that some restrictions are greater than others. We make no equivocation in judging, for instance, that imprisonment is a greater interference with personal liberty than a curfew. If differences in magnitude exist, the fact that such differences cannot be measured precisely does not preclude the possibility of comparison, for those imprecise cardinal differences can be great enough to allow for the possibility of determinate comparative relations.

To make sense of this idea, imagine being asked to compare the size of two clouds that seem to be at the same altitude “just by looking at them.”Footnote ⁵⁹ Assume now that the two clouds, due to constant and changing winds, move across the sky changing their shape, sometimes stretching and sometimes shrinking. Just by looking at them, it may not be possible to say for sure exactly how big these clouds are, whether reference to their size is made in terms of the area of the sky covered or the volume they occupy in the atmosphere. But let us further suppose one of the clouds is clearly bigger than the other despite how much their corresponding shapes vary over time. We may not be able to say, just by looking at them, precisely how much the difference is in terms of a scale of measurement. But we nevertheless could describe the difference effectively. One may, for instance, come up with a ratio approximating the magnitude of the difference: “The big cloud is between 50 and 70 percent bigger than the small cloud.” Or one may instead appeal to other entities to describe the difference: “The big cloud is as big as a regular house, while the small cloud is, at best, as big as a regular car.” Be that as it may, it makes sense to assert a comparative relation: the “house cloud” is bigger than the “car cloud.” As it turns out, the fact that we cannot precisely measure the items in comparison does not entail incomparability because we can tell whether one is bigger than the other. Similarly, such imprecision does not entail vagueness or indeterminacy either, because this is not a borderline case where the clouds are so similar in size that sometimes, say, the cloud on the right seems bigger and sometimes the one on the left does.

Alexy's account of proportionality should thus be understood as a method for the imprecise comparison of principles. His triadic scale would play the role of a theoretical device, justified on practical grounds, to represent magnitudes as if they were precise.Footnote ⁶⁰ The proportionalist may concede, therefore, that degrees of satisfaction and non-satisfaction of constitutional principles are imprecisely cardinally comparable in reality. But she would nonetheless propose that proportionality's proposed measurement scale, whether simpler or more complex than a triadic scale, is a theoretical attempt to approximate the value of these magnitudes. This might, I believe, serve as a sufficient response to the incommensurabilist.

It therefore seems that the noncomparability and incommensurability arguments do not pose a serious challenge to Alexy's account of proportionality. At best, the incommensurability objection may push the proportionalist to admit that the triadic scale for the measurement of degrees of satisfaction and non-satisfaction of constitutional principles is an artificial device for the measurement of imprecise evaluative differences. But none of these problems warrants the claim that comparability in hard cases is precluded.

B. Incomparability and Vagueness

A. The Possibility of Parity

Part of the argument for believing there is a fourth comparative relation was implicitly presented in the previous section. Indeed, we can take the analysis of the problems of incomparability and vagueness as providing an argument from elimination for the possibility of parity. The argument can be reconstructed in three steps.Footnote ⁸⁸ First, it was shown that sometimes the traditional trichotomy fails the hold. This is most likely to be the case in notable-notable cases of proportionality, where it seems wrong to judge that one constitutional principle is more important than the other in a particular case and where assuming evaluative equality would lead to the counter-intuitive implication that whoever is in a position to break the stalemate could simply flip a coin an decide on either option without rational regret. Second, it was shown that the failure of the trichotomy to hold does not entail incomparability. For every notable-notable case of proportionality, one could imagine a nominal-notable case of proportionality where comparison is not problematic. One could then imagine a continuum of small improvements linking the nominal-notable with the notable-notable case. This “chaining argument” rests on the intuition that, in principle, a small improvement does not trigger incomparability where before there was comparability.Footnote ⁸⁹ Therefore, if the trichotomy sometimes fails to hold, and at least in some cases that failure does not entail incomparability, there is conceptual room for a fourth positive comparative relation. Chang calls this fourth relation “parity.” The third stage of the argument involves showing that a failure of the trichotomy to hold that does not entail incomparability is not just a borderline application of vague predicates. Our assessment of vagueness has shown that we have reason to believe it is not the most satisfactory account of what happens in hard proportionality cases.

But showing how parity can better explain what happens in hard proportionality cases may seem mysterious. That, I believe, is because we have so far been viewing normativity through the lens of the standard trichotomous approach. We have done so because such an approach to normativity is the one assumed by both proportionalists and their critics. If we are to understand parity, we need to leave such a view behind. As it turns out, parity can indeed explain the hardest cases of conflicting constitutional principles. However, the theoretical benefits of parity cannot come without sacrifice. If proportionality is to endure, it must relinquish certain mistaken assumptions that arise from adopting the standard traditional view.Footnote ⁹⁰

An alternative view of normativity requires, first, thinking of comparability not in terms of positive evaluative relations but in terms of evaluative differences. If two items have evaluative differences, then they are comparable. If there is no evaluative difference, not even a zero difference,Footnote ⁹¹ they are incomparable. Thinking in terms of evaluative differences makes the notion of parity more apparent. Chang submits that evaluative differences can be understood in two axes: magnitude (whether a difference between two items is zero or nonzero) and direction (whether a difference is biased or unbiased). The traditional trichotomy can thus be explained in the following terms:

• • If A is better than B with respect to V, the difference between them is nonzero and biased towards A.

• • If A is worse than B with respect to V, the difference between them is nonzero and biased towards B.

• • If A and B are equally good with respect to V, the difference is zero and unbiased.

Parity can be explained, in these terms, as a nonzero-unbiased difference. If A and B are on a par, none is better than the other—that is, the difference is not biased towards either of them, yet the difference is nonzero. But how can this be possible? The explanation requires leaving what I call the “nonnormative sting” behind.

B. Leaving the Nonnormative Sting Behind

Thinking that evaluative comparisons proceed in terms of items being “better than,” “worse than,” and “equally good” may be due to the fact that nonnormative comparisons proceed in terms of items being “more than,” “less than,” and “equal amount of” some relevant attribute.Footnote ⁹² Unreflective assimilation of normative comparisons to nonnormative comparisons may unnecessarily restrict the way we understand practical reason in two respects.

First, it may restrict the scope of evaluative differences to cardinality. And since nonevaluative comparisons are, generally, capable of precise cardinal measurement, one may further think that therefore evaluative comparisons should generally be able of a precise determination. This is perhaps why theorists such as Alexy think the principle of proportionality needs—for it to be justified—a scale of intensities that allows for numerical representation.Footnote ⁹³ But the evaluative realm does not work in that way. In my assessment of the problem of incommensurability, it has been suggested that cardinality can also be imprecise. Indeed, I believe Alexy would agree that his triadic scale is an idealization, justified on practical grounds, of a model that attempts to achieve satisfactory approximation to magnitudes that, in substance, are not capable of precise measurement.

On the alternative view of normativity, imprecise cardinality need not be hidden under the mask of commensurability. Indeed, imprecise cardinality explains why unbiased nonzero evaluative differences—that is, parity—are intuitively possible. It should not be shocking to acknowledge that normative considerations and evaluative properties are manifested in the world with some sort of imprecision. Values like beauty, justice, and humility would, when instantiated in the world, manifest themselves inexactly.Footnote ⁹⁴ And if this is the case, we have at least one ground to distinguish normative comparisons from nonnormative comparisons. If at least some normative considerations are “born” with such imprecision, we cannot, in principle, take for granted that the trichotomous relations exhaust the scope of comparative analysis. Nonzero unbiased evaluative differences could, in principle, be possible. If so, it might be thought that parity is a sort of “rough” or “imprecise” equality. The difference between items on a par is not zero, but the reason why the difference is nonetheless unbiased is that the options “oscillate” in the “same region” of value.

Parity, however, is not to be understood as reducible to equality,Footnote ⁹⁵ for it has a different logical structure.Footnote ⁹⁶ Although parity and equality are both “symmetric” (if A is on a par with B, then B is on a par with A), they differ in that only the former is “irreflexive” (A is never on a par with itself) and “non-transitive” (if A is on a par with B, and B on a par with C, it does not follow that A is on a par with C).Footnote ⁹⁷ If parity is not—just—a sort of imprecise equality, it is right to think of it as a sui generis comparative relation.

The other reason why the nonnormative sting unnecessarily restricts the way we understand practical reason has to do with the structure of normativity. For parity goes even beyond the notion of imprecise quantitative measurement. In more recent work, Chang has made it clear that imprecise cardinality is just a way in which parity might arise. The notion of parity is much deeper, and its explanation is not to be restricted to the domain of cardinality.Footnote ⁹⁸ For Chang, what makes parity a distinctive comparative relation is the very structure of normative considerations. The evaluative realm is not manifested only in terms of magnitudes: evaluation is certainly not only a matter of how much value things have. The alternative view here proposed takes into consideration that values have also qualitative manifestations. In her words:

The idea of unbiased nonzero evaluative differences, or parity, can indeed be explained by appealing to the fact that values present magnitude as well as quality or significance.Footnote ¹⁰⁰ Consider, for instance, love. One may sensibly hold that love is manifested in greater or lesser degrees of intensity. But we can also think that there are manifestations of love that are qualitatively different. Love can be “romantic,” “innocent,” “obsessive,” and so on.Footnote ¹⁰¹ In that way, parity may arise not as a result of cardinal (whether precise or imprecise) comparisons, but as a result of qualitative differences that cannot be represented by the trichotomy better than, worse than, or equally—even “roughly equally”—good.Footnote ¹⁰² In these cases, we could properly say that two items are on a par because they are “qualitatively different.”

In light of what has been said so far, parity is not only a possible comparative relation; it potentially is the comparative relation holding in hard cases involving conflicts of constitutional principles. Leaving the nonnormative sting behind might help us to better understand the nature of parity. Now it is time for parity to help us examine the rationality of proportionality.

A. Does Parity Undermine the Concept of Proportionality?

Under the proposed approach to normativity, both quantitative and qualitative aspects determine the overall value one item has with respect to what matters in a choice situation. Evaluative differences are sensitive to the different quantitative and qualitative manifestations of the items at stake, and perhaps this is what critics like Urbina are concerned about when criticizing theories like Alexy's. By adopting a traditional trichotomous approach, Alexy's account pays much attention to the quantitative aspect in which principles are manifested in particular cases, and little to no attention to their qualitative manifestations. Such inattention, I believe, makes balancing unconvincing whenever a notable-notable case of proportionality arises. Why assume the “tradeoff” game recommended by the Law of Balancing applies indistinctively in all conflicts of principles? Again, if all that matters is magnitude, we could make a reasonable case for such a method. But the reality is that principles also manifest qualitative aspects. One cannot assume that any light interference with a principle will be justified whenever there is a medium or serious concern about satisfying another principle.Footnote ¹⁰³ One could imagine situations in which, though a measure can be classified as a light interference, it nonetheless seems qualitatively more serious than that. Consider a measure imposing an “inheritance tax.” Assume the tax rate imposed is minimal. Some may rightfully think of it as a light interference with the right to property. But reasonable disagreement about the quality of such interference can be found. Some may think it “just,” others “insulting,” and yet others even “trivial.” And notice that these judgments can be made without even thinking about the value on the other side of the balance—which we can assume is, in any event, a legitimate concern for the common good.

The qualitative dimension of constitutional principles creates many complexities. I would thus agree with Caviedes that we cannot assume, as Da Silva does,Footnote ¹⁰⁴ that parity arises only in what Alexy calls “stalemate” situations.Footnote ¹⁰⁵ If we take seriously the qualitative dimension of normativity, we could have parity in cases in which our analysis of the degrees of satisfaction of the principles at issue renders a relation of precedence. This would entail a seemingly paradoxical scenario: we could have situations where (1) according to the law of balancing, the trichotomy holds, yet (2) it also fails to hold, as the constitutional principles involved are considered on a par.

Of course, the paradox is merely apparent, because in (1) only the quantitative aspect of the items at stake is taken into account, whereas in (2) both the quantitative and the qualitative aspects of the items at stake are considered. But if we are ready to accept that the normative world manifests both quantitative and qualitative dimensions, the proportionalist would be faced with a serious mismatch between theory and reality. For balancing would not account for the concept of parity and would thus fail as an account for decision-making.

The proportionalists, if they were to insist on their account, would have to modify their method to incorporate qualitative differences into it.Footnote ¹⁰⁶ This is not necessarily impossible. For one could propose a system capable of determining the value of principles that manifest both quantitative and qualitative aspects.Footnote ¹⁰⁷ Proponents of proportionality may try to come up with such a method, thus replacing the Law of Balancing with an alternative account where, in relation to a covering consideration, one may be able to determine whether one principle is more/less important than, as important as, or on par with, another principle. However, while theoretically plausible, this strategy seems to me practically dispensable for two reasons. First, while it is true that coming up with a theoretical replacement for balancing would make comparisons more precise, it would make decision-making much more complicated, and perhaps unnecessarily so. Once the idea of parity is accepted and its nature understood, one could find and justify the existence of parity without the need for a highly developed and complex method to confirm what sound judgment and practical experience may achieve. And second, modifying the formula would not contribute to determining what course of action is to be taken when two items are on a par, limiting its utility to that of comparative diagnosis. And as I shall explain in the following sub-section, the resolution of parity cases takes more than mere comparative diagnosis.

Now, how about abandoning a “maximizing account of proportionality” like Alexy's and relying instead on a more flexible account of proportionality as “unconstrained moral reasoning”? Urbina suggests that what makes these accounts different is that they do not approach balancing as a method for the commensuration of units of value, but simply as an authorization for “balancing reasons.”Footnote ¹⁰⁸ Under such a view, proportionality would be an authorization to engage in “open-ended balancing”Footnote ¹⁰⁹ without the need for a method to calculate normative weight.Footnote ¹¹⁰ Without an explicit tie to cardinality, one may think, this type of proportionality accounts would be free of the problem of comparability. Moreover, thanks to the flexibility of the appeal to “general practical reasoning,” these accounts could also incorporate the concept of parity.

The argument is plausible, but it requires further clarification to support its conclusion. It should be noted that relying on “general practical reasoning” does not inherently exclude a purely cardinal or quantitative view of comparability. Indeed, to the contrary, the strength of the appeal to general practical reasoning lies in its adaptable nature, which allows for the inclusion or exclusion of any approach to comparability. If that is the case, I would not say there are conclusive reasons to believe that appealing to general practical reasoning is sufficient per se to overcome the problem of comparability, for there are many practical theories—perhaps most of them—that adopt the trichotomy thesis and therefore would be ready to assert noncomparability, incommensurability, incomparability, or vagueness before considering the possibility of parity. This is why I would not hastily conclude that proportionality theories understood as “unconstrained moral reasoning” are free from the problem of comparability. To reach that conclusion, an intermediate step is necessary: abandoning a trichotomous approach to normativity and accepting the possibility of parity. As it turns out, it is the concept of parity, rather than an appeal to general practical reasoning, that would equip a theory of balancing with the conceptual tools to face the problem of comparability.

I would thus conclude the following: the principle of proportionality, either as “maximization” or as “unconstrained moral reasoning”, may survive the problem of comparability, but only insofar as a trichotomous approach to normativity is ruled out and the possibility of parity is acknowledged.

B. The Relevance of Parity for Decision-Making in Hard Choices Involving Conflicting Constitutional Principles

What is the significance of the existence of parity for decision-making? Does it make any difference? It all comes down to how choice is made when parity is the governing relation between two items. Chang suggests that when two items are on par, it is rationally permissible to choose any of the alternatives. But how is this different from what happens when two items are equally meritorious, incomparable, or vague? When two items are equally good, one could choose whichever option without rational regret.Footnote ¹¹¹ When two items are incomparable, one could choose either option based on personal subjective preferences.Footnote ¹¹² And if the comparison is vague, one could just estipulate an answer arbitrarily.Footnote ¹¹³ One question becomes imperative: Why does all this matter if, at the end of the day, one can choose either of the alternatives?

It matters a great deal whether hard cases involving conflicting constitutional cases are instances of parity, rather than equality, incomparability, or vagueness. It matters because the practical attitudes and possibilities of the decision-making authority are substantively different. When two items are evaluatively equal, picking whichever option is rationally permissible, as there are sufficient reasons for choosing between two items the evaluative difference of which is zero. As Chang puts it, one might as well just flip a coin without rational regret. When items are incomparable, the scenario is not one of rational comfortability with the choice. Rationality is paralyzed, for there are no reasons to pick between the incomparable alternatives. There are no reasons even for flipping a coin. Rational agency plays no role, and hence a choice can only be made by virtue of arational considerations, like purely subjective emotional or existential preferences. And when the comparison between two items is vague, the practical response of the decision-maker, as stated above, would be that of believing that the first-order choice situation is indeterminate (irresolvable) and thus arbitrary external stipulation would be permissible.Footnote ¹¹⁴

Parity, however, suggests a different practical response. When two items are on par, rationality must actively be exercised. The decision-maker is thus called to exercise their rational agency to provide a resolution. Chang suggests there are two ways in which rational agency can be exercised in parity cases. The first is committing to one of the alternatives. By committing to one of the alternatives, the decision-maker creates a reason for choosing it by willing so. It is an act of self-constitution in which one “puts herself behind” a consideration and thus creates the normativity for choosing.Footnote ¹¹⁵ Now, I am aware that the possibility of robust creative normative powers can be controversial and may seem mysterious (even radical!) in the context of morality. However, within the context of legal reasoning, it seems to me plausible. In fact, the image of judges flipping coins, or doing what they feel like, or stipulating an answer extrinsic to the choice situation,Footnote ¹¹⁶ may seem either disturbing or strange. On the other hand, the more solemn and recurrent idea of judges voting in a court of appeal—literally putting their will behind a proposed ruling for a hard case—seems not only acceptable but also the right thing to do. And it seems justified because decision-makers’ normative powers are, at least in the technical legal domain, justified by legal reasons. A second way in which rational agency could be exercised in parity cases is by drifting. One could abstain from the self-constituting action of committing and drift into one alternative in virtue of an existing consideration that counts in its favor.Footnote ¹¹⁷ Imagine, in that sense, a judge who, faced with a hard choice, drifts into the alternative most coherent, overall, with the legal system because coherence with the existing law is a reasonable consideration in favor of a proposed ruling.

I believe the difference between commitment and drifting offers an important layer of conceptual refinement. A justified choice among alternatives on a par certainly involves making evaluative judgments. Sunstein, in that sense, has submitted that resolution of hard choices requires from the agent an act of self-understandingFootnote ¹¹⁸—that is, an act of constructive interpretation (in the Dworkinian sense)Footnote ¹¹⁹ about what the agent values most. But the resolution of hard choices goes beyond acts of understanding and evaluation. Hard cases are hard because it takes will to resolve them. The difference between commitment and drifting expresses, even if poorly, a certain gradation in the way will operates in decision-making: either you create a reason for choosing by committing, or you just drift into one existing consideration and settle the matter without changing yourself. In some practical contexts, perhaps, the difference between a committed decision and a non-committed one might be trivial. But surely such a difference matters in some other contexts. At this point, repeating this article's introductory sentence might be appropriate: hard cases in law are rife, and it matters how we deal with them.

C. A Challenge Arising Out the Existence of Parity

Finally, if parity cases require active rational agency through the exercise of will, this seems to raise a shift in the diagnosis of the hardness of cases involving conflicting constitutional principles. Once the existence of parity is acknowledged, the difficulty is not so much determining what comparative relation holds between two constitutional principles as manifested in a particular case. Once we allow for the possibility of parity, most hard proportionality cases could be intuitively identified as cases of parity. The hardness of these situations is therefore, volitional,Footnote ¹²⁰ as the decision-maker now faces the question of whether to commit or to drift when carrying out their duties to settle disputes on behalf of the state.

In light of this situation, a significant challenge arises for the legal system: the problem of “authority allocation.” The problem of authority allocation groups different concerns about how legal institutions are to act in the face of choices involving conflicting constitutional principles that are on par. Should judges always commit? Could judges, on certain occasions, just drift? Is the legislature better positioned than the judiciary to commit on behalf of the state? The answer to these questions goes beyond the discussion on the soundness of proportionality. For the problem of authority allocation is not a problem about which method should we use to justify the choice, but about who should have the authority to make hard choices. It requires substantive argument about the best political arrangement to best satisfy constitutional values that, on occasions, may conflict and render hard choice situations. It is, therefore, beyond the scope of this article to answer and discuss in depth whether it is best to leave questions of constitutional adjudication in the presence of parity to the judges or the legislature. Da Silva, for instance, holds that parity is a ground for judicial deference in favor of the legislature.Footnote ¹²¹ But such a conclusion may be hasty. There might be considerations of democracy for leaving the hardest parity cases to the lawmaker, but I wonder if there are no competing reasons of, perhaps, substantive justice to think the courts might also play a role in the state's institutional commitments.Footnote ¹²² The problem of authority allocation is a serious one. And perhaps addressing it could best be achieved in a separate study engaging fully with the substance of different political, constitutional, and moral theories.

In any case, the best I can do for now is to sketch a view I have defended in the pastFootnote ¹²³ and that, although in need of revision, I do not find entirely inconsistent with my current ideas. I would propose a system of mixed-authority allocation where judges and lawmakers would share the authority to commit in different circumstances and according to their institutional roles. Judges, I think, could commit or drift depending on their assessment of a particular case. They could commit when, for instance, what matters is an issue of substantive justice that could not be left to the intricacies and tradeoffs of legislative deliberation. But I also think they should be at least allowed to drift on occasions when they find themselves incapable of committing, perhaps on grounds of humility, to a certain kind of resolution that is far from definitive. That way, if judges were confronted with a case where two constitutional principles were on par, they could drift into a solution they deem sufficiently justified and honor their duty to solve the case at hand, but without having to determine with the authority of precedent that the choice made there is the choice any judge should make.Footnote ¹²⁴ In those cases of judicial drifting, the legal system would then defer to the legislative apparatus to discuss the state's stance on certain evaluative conflicts and achieve, preferably and in the absence of judicial commitment, at least a democratic decision.Footnote ¹²⁵ I am aware that this hypothetical system may leave many dissatisfied. And perhaps there are more intelligent ways of arranging the legal systems (even existing ones) to incorporate all the possibilities arising out of the possibility of parity. However, the problem of authority allocation may serve at least to incentivize further scholarly discussion on how legal systems should operate in hard proportionality cases where normative powers need to be exercised to justify rational choice.