Balancing, theorization and the separation of powers

The relationship between proportionality in general and its most controversial and in practice most significant step balancing in particular and the separation of powers has attracted significant literature already. This article aims to show that the notion of theorization can elucidate the relationship between judicial balancing and the separation of powers. In its first part the article sets out what the problem with proportionality and balancing and the separation of powers has been in practical terms. The second part sets out the core of the argument namely that we can make sense of the relationship between balancing and the separation of powers by relying on the concept of theorization. The third and fourth parts reflect on the how we can use the notion of theorization to understand the notion of deference and the factors that influence a courts capacity to theorize.