Proportionality and Absolute Rights

Forthcoming in Vicki Jackson and Mark Tushnet (eds.), Proportionality: New Frontiers, New Challenges, Cambridge University Press, 2016

LSE Legal Studies Working Paper No. 10/2016

25 Pages Posted: 5 Aug 2016

See all articles by Grégoire Webber

Grégoire Webber

Queen's University - Faculty of Law; London School of Economics - Law Department

Multiple version iconThere are 2 versions of this paper

Date Written: May 6, 2016

Abstract

What is the relationship between absolute rights and the principle of proportionality? Proponents of proportionality in human rights law adopt one of two answers to this question: proportionality is inapplicable to absolute rights or absolute rights are no more than generalised predictive conclusions of proportionality analysis. Both answers share the following in common: proportionality is incompatible with absolute rights. That incompatibility is a function of the dominant conception of rights in proportionality analysis, a conception that divorces rights from the relationships between persons constitutive of rights and right relations. My argument begins by reviewing how absolute rights earn their claim to being absolute in part because they identify duties held by persons not to perform certain acts (sec. I). The relationship between absolute rights and the specification of rights is explored next by reviewing the ways in which the doctrine of proportionality struggles with absolute rights (sec. II). This review highlights how rights are imperfectly constituted by proportionality proponents (sec. III) and in need of proper specification so as to align their normative force and scope (sec. IV). This account of specified rights as candidates for absolute status is then defended against criticism by Aharon Barak and Kai Möller (sec. V), before exploring how the specification of rights is secured both by morality and by law (sec. VI).

Keywords: human rights, absolute rights, proportionality, balancing, specification

Suggested Citation

Webber, Grégoire, Proportionality and Absolute Rights (May 6, 2016). Forthcoming in Vicki Jackson and Mark Tushnet (eds.), Proportionality: New Frontiers, New Challenges, Cambridge University Press, 2016 ; LSE Legal Studies Working Paper No. 10/2016. Available at SSRN: https://ssrn.com/abstract=2776577 or http://dx.doi.org/10.2139/ssrn.2776577

Grégoire Webber (Contact Author)

Queen's University - Faculty of Law ( email )

Macdonald Hall
Kingston, Ontario K7L3N6
Canada

HOME PAGE: http://law.queensu.ca/directory/gregoire-webber

London School of Economics - Law Department ( email )

Houghton Street
London, WC2A 2AE
United Kingdom

HOME PAGE: http://www.lse.ac.uk/collections/law/staff/gregoire-webber.htm

Register to save articles to
your library

Register

Paper statistics

Downloads
355
rank
62,953
Abstract Views
1,790
PlumX Metrics
!

Under construction: SSRN citations while be offline until July when we will launch a brand new and improved citations service, check here for more details.

For more information