Rescuing Proportionality

Abstract

The paper addresses the normative foundations of the principle of proportionality, as used in human rights adjudication. The first part of the paper mounts a critique against the orthodox conception of the doctrine, according to which the point of proportionality is to balance rights against other considerations (public interest, rights of others) with a view to optimise the realisation of all the relevant values. The second part of the paper offers an alternative account of the principle of proportionality. It argues that the point of proportionality is to demarcate separate moral practices and the values that govern them. In the case of human rights, proportionality demarcates state action and picks out a dimension of the fundamental value of equal respect and concern.

Keywords: proportionality, human rights, balancing, fundamental rights, European convention on human rights, judicial review, equality