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The Distribution of the Burden of Proof in Proportionality Analysis
from Part III - Proportionality, between Transformation and the Status Quo
Published online by Cambridge University Press: 27 October 2022
This chapter focuses on the distribution of the burdens of argumentation in proportionality analysis. A survey of rights adjudication in Latin America and other countries suggests that the idea of proportionality as an interchange of reasons and justifications has substantial conceptual and institutional indeterminacies, which may only be solved with a view on the normative consequences of the different options in different contexts. The chapter explores two extreme versions of the distribution – the dialogic and the unilateral – but also the gradation or continuum between them, with flexible and strict versions of dialogue and open and closed modalities of unilateralism. The selection of one or another point along the spectrum has consequences in terms of normative rationales such as democracy, epistemic quality, integrity, equality or legal security, and should carefully account for contextual elements like patterns of access to justice, legal culture and procedural architectures.
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