Formal Principles: Some Replies to Critics

One of the main theses of principles theory is that the rational application of constitutional rights presupposes proportionality analysis and that proportionality analysis necessarily includes balancing. The objection of over-constitutionalization has been raised to this thesis. Principles theory has attempted to reply to this objection with a theory of discretion in which formal principles, in particular, the principle of democracy, play a pivotal role. The theory of formal principles, however, has led in recent decades to more questions than answers. With respect to constitutional rights, two models have been and remain in competition: the combination model and the separation model. The first model balances formal principles in combination with substantive principles, whereas the second model separates the balancing of formal principles from the balancing of substantive principles. It is argued in this chapter that both models are mistaken, and an epistemic model is proposed that finds expression in the epistemic variables of the Weight Formula.