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In this article, I argue that there are two distinct conceptions of the principle of proportionality within constitutional law and theory. One comes within what I call “the priority of rights model” and the other within what I call “the model of optimization of values in conflict.” The main purpose of the text is to propound an egalitarian defense of proportionality-based balancing, such as it is understood within the model of optimization. After having described the “idealtype” of each model (Section 2), I argue that the normative justification of the model of optimization lies in the fact that it honors the moral equality of persons in context of pluralism and cultural diversity (Section 3). In particular, I argue that, from this normative point of view, the priority of rights model has become difficult to sustain. The argument is a form of “ethical proceduralism”: it refers to a procedure by virtue of which the normative validity of the competing models is tested. [ABSTRACT FROM AUTHOR]

The article examines two Canadian influential theories focusing on Democracy and constitutionalism which are referred to as sovereignty of the people and preliminary commitment by the author. It examines whether the Rule of Men and the Rule of Law could be reconciled in Canada. Topics of discussion include the influence of English philosopher John Locke, the principle of the Parliament's sovereignty, and popular sovereignty as introduced by the Canadian Supreme Court during the middle of the 1980s.

According to the theory of “institutional dialogue,” courts and legislatures participate in a dialogue aimed at achieving the proper balance between constitutional principles and public policies and the existence of this dialogue constitutes a good reason for not conceiving of judicial review as democratically illegitimate. This essay sets out to demonstrate that there are important limits to the capacity of insitutional dialogue to legitimize the institution of judicial review. To that end, it situates the theory of institutional dialogue within the debate over the legitimacy of judicial review of legislation within democracy and introduces a distinction between two conceptions of dialogue—dialogue as deliberation and dialogue as conversation—and examines the limits of each theory. The author does not contend that there can be no dialogue between courts and legislatures but, rather, that the kind of dialogue that would be needed to confer legitimacy on the institution and practice of judicial review does not—and cannot—exist. Consequently, the normative character of institutional dialogue theory, as conceived thus far, is ultimately rhetorical. [ABSTRACT FROM PUBLISHER]

Many liberals cannot help distrusting deliberative democracy theory. In their view, the theory offers no sufficient guarantee that the outcomes of democratic deliberation will be respectful of individual interests generating what they conceive as basic moral rights. The purpose of this text is to provide one argument showing that liberal rights are sufficiently protected within deliberative democracy theory. The argument does not rest on the idea of moral rights or material justice. It rests on the conditions of legitimate law deliberative democracy theory presupposes, namely, the conditions that make concrete the idea of legitimacy as “actual public justification.” [ABSTRACT FROM AUTHOR]