Legislative Discretion, Formal Principles and Proportionality

Proportionality reasoning – the dominant framework for resolving norm conflicts – has been primarily analyzed and applied in relation to material principles protecting fundamental rights. More recently, the theory of proportionality has expanded to include formal principles concerning institutional competences, broadening its scope to engage with questions of democratic legitimacy related to the modulation of judicial review and legislative discretion. This development has fostered a connection between proportionality theory and democratic theory, particularly the deliberative account of democracy. The article explores this connection, outlines the resulting model of judicial review, and critically examines its most challenging aspects.