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Doing justice to rights and values: teleological reasoning and proportionality

Doing justice to rights and values: teleological reasoning and proportionality This paper studies how legal choices, and in particular legislative determinations, need to consider multiple rights and values, and can be assessed accordingly. First it is argued that legal norms (and in particular constitutional right-norms) often prescribe the pursuit of goals, which may be in conflict one with another. Then a model of teleological reasoning is brought to bear on choices affecting different goals, among which those prescribed by constitutional norms. An analytical framework is provided for evaluating such choices with regard to possible alternatives. The assessment of legislative choices according to proportionality is then considered, and is modelled using the provided analytical framework. Finally, the framework is expanded to include the ideas of reasonableness and institutional deference, and the corresponding margins of appreciation. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Artificial Intelligence and Law Springer Journals

Doing justice to rights and values: teleological reasoning and proportionality

Sartor, Giovanni
Artificial Intelligence and Law , Volume 18 (2) – Aug 21, 2010
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41 pages

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Publisher
Springer Journals
Copyright
Copyright © 2010 by Springer Science+Business Media B.V.
Subject
Computer Science; Artificial Intelligence (incl. Robotics); International IT and Media Law, Intellectual Property Law; Philosophy of Law; Legal Aspects of Computing; Information Storage and Retrieval
ISSN
0924-8463
eISSN
1572-8382
DOI
10.1007/s10506-010-9095-7
Publisher site
See Article on Publisher Site

Abstract

This paper studies how legal choices, and in particular legislative determinations, need to consider multiple rights and values, and can be assessed accordingly. First it is argued that legal norms (and in particular constitutional right-norms) often prescribe the pursuit of goals, which may be in conflict one with another. Then a model of teleological reasoning is brought to bear on choices affecting different goals, among which those prescribed by constitutional norms. An analytical framework is provided for evaluating such choices with regard to possible alternatives. The assessment of legislative choices according to proportionality is then considered, and is modelled using the provided analytical framework. Finally, the framework is expanded to include the ideas of reasonableness and institutional deference, and the corresponding margins of appreciation.

Journal

Artificial Intelligence and Law – Springer Journals

Published: Aug 21, 2010

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