Proportionality and Rights Inflation

Kai Möller

London School of Economics - Law Department

June 1, 2013

LSE Legal Studies Working Paper No. 17/2013

Proportionality is the most important principle of constitutional rights law around the world, but our theoretical grasp of both the principle itself and the conception of rights of which it is the crucial part is still emerging. The goal of this chapter is to contribute to the scholarly discussion on proportionality by exposing and exploring an important link between proportionality and rights inflation, that is, the phenomenon that increasingly relatively trivial interests are protected as rights. My claim is that proportionality is not only compatible with rights inflation, but that it necessitates it: under a theory of rights that endorses proportionality, there is no coherent way to avoid the conclusion that all autonomy interests should be protected as rights, and this includes interests in engaging in trivial and even immoral activities. Although this intuitively implausible result may strengthen some in their doubts about or rejection of proportionality, this chapter will proceed by showing that, while my argument, if correct, necessitates the revision of some widely held views about the nature and justification of human and constitutional rights, there is nothing incoherent or unattractive about such a view. On the contrary, rights inflation and proportionality are part and parcel of an attractive conception of constitutional rights.

Number of Pages in PDF File: 18

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Date posted: June 13, 2013 ; Last revised: November 9, 2013

Suggested Citation

Möller, Kai, Proportionality and Rights Inflation (June 1, 2013). LSE Legal Studies Working Paper No. 17/2013. Available at SSRN: https://ssrn.com/abstract=2272979 or http://dx.doi.org/10.2139/ssrn.2272979

Contact Information

Kai Möller (Contact Author)
London School of Economics - Law Department ( email )
Houghton Street
London, WC2A 2AE
United Kingdom
HOME PAGE: http://www.lse.ac.uk/collections/law/staff/kai-moller.htm

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