Proportionality and Justification
Constitutionalism Justified: Rainer Forst in Discourse (E Herlin-Karnell and M Klatt, ed.; H Morales Zúñiga, assist. ed.) Publisher: Oxford University Press 2019.
38 Pages Posted: 6 Feb 2020
Date Written: December 13, 2019
This chapter presents a normative defense of proportionality’s absolute validity, arguing that proportionality is one of the central rules that establish the space of reasons. Proportionality enables the construction of a justified and well-founded basis for the rational application of human rights. The normative basis of proportionality lies in a moral right to justification. To explore this idea, the chapter begins by explaining the meaning of a right to justification. Next, it explores how it relates to the proportionality test. Building upon the distinction between internal and external justification of rights reasoning, it also addresses the universality problem that consists in doubts about the global validity of the right to justification. It defends the international and transnational validity of the right to justification against claims to cultural relativity by discussing the application of human rights. This, in turn, allows a defense of Forst’s right to justification as a robust fundament of discursive global constitutionalism.
Keywords: proportionality, justification, reasons, human rights, cultural relativity, Rainer Forst
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