Remarks on Giovanni Sartor's Paper, The Logic of Proportionality: Reasoning with Non-Numerical Magnitudes

Extract

In his brilliant paper The Logic of Proportionality: Reasoning with Non-Numerical Magnitudes, Professor Sartor provides a multi-layered analysis of proportionality based on a model of teleological reasoning governed by value-norms, arguing that this kind of reasoning is quantitative but non-numerical, i.e., operates on magnitudes to which no symbolic numerals are assigned. The analysis pursued by Professor Sartor can be divided into three parts. In the first part, drawing on the theory of bounded rationality, Professor Sartor develops a model of teleological reasoning (of which proportionality reasoning is a special case) distinguishing its four stages: Value-adoption, goal-adoption, plan-adoption, and action-adoption. In the second part, he introduces and develops in great and illuminating detail a distinction between value-norms and action-norms. In the third—main—part, Professor Sartor makes the basic claim of his paper that proportionality reasoning (i.e., reasoning aimed at establishing whether a given legislative norm interfering with some constitutionally protected right is “proportional”), involving the assessment of the impact of choices upon relevant values, is quantitative but not based on numerical magnitudes, and develops a conceptual framework for reconstructing this reasoning and explicating its constituent elements (suitability, necessity, and balancing in the strict sense). Each of these parts abounds with valuable analyses and precious insights and would deserve a separate commentary, yet I shall confine myself mainly to the analysis of the third part, in which he develops his basic claim. I shall focus in the first place on two interpretive problems my reading of Professor Sartor's paper has given rise to, though some of my remarks will concern also more technical matters.