A Critique of Proportionality
American Journal of Jurisprudence, Vol. 57, 2012
32 Pages Posted: 11 Nov 2012 Last revised: 4 Mar 2013
Date Written: 2012
In this article I argue against the proportionality test in human rights adjudication. I discuss two conceptions of proportionality. One sees proportionality as a doctrinal tool that optimizes rights and public interests. The other sees proportionality as allowing for open-ended moral reasoning. I argue against both conceptions separately, and conclude that defenders of proportionality are in the following dilemma: either proportionality is insensitive to important moral considerations related to human rights and their limitations, and thus it is an unsuitable tool for human rights adjudication; or proportionality can accommodate the relevant moral considerations, but at the price of leaving the judge undirected, unaided by the law. I will further argue that lack of guidance is a deficiency in legal adjudication, which has some concrete negative effects.
Keywords: Proportionality, Human Rights, Jurisprudence, Philosophy of Law, Constitutional Law
Suggested Citation: Suggested Citation