Proportionality and Incommensurability

35 Pages Posted: 19 Jun 2012 Last revised: 20 Feb 2013

Date Written: June 11, 2012

Abstract

Proportionality doctrines in human rights adjudication require the judges to ‘balance’ interests that cannot actually be weighed against each other in any sort of scales. If judges are purporting to balance things that cannot actually be balanced, it may seem that the doctrines mean a departure from the rule of law, in favour of arbitrary rule by judges. I will argue that the resolution of incommensurabilities is not in itself a departure from the rule of law; the rule of law demands a system in which judges are often responsible for reconciling incommensurable interests. But some theorists have seen a potential in proportionality for rationality, transparency, objectivity, and legitimacy, which the doctrine cannot actually deliver. And proportionality reasoning involves pathologies, by which I mean structured tendencies toward misconceived decisions. I comment on some of these dangers, to illustrate the claim that they all depend on particular mistakes, and do not arise automatically from the judges’ role in resolving conflicts among incommensurable interests.

Keywords: ECHR, proportionality doctrine, deportation

Suggested Citation

Endicott, Timothy A.O., Proportionality and Incommensurability (June 11, 2012). Oxford Legal Studies Research Paper No. 40/2012. Available at SSRN: https://ssrn.com/abstract=2086622

Timothy A.O. Endicott (Contact Author)

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

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