Beyond Reasonableness: The Dignitarian Structure of Human and Constitutional Rights
Forthcoming, (2021) 34(2) Canadian Journal of Law & Jurisprudence
25 Pages Posted: 14 Apr 2021
Date Written: March 27, 2021
Human and constitutional rights theory in the last two decades focused initially on the principle of proportionality and subsequently on the ideas of the ‘culture of justification’ and the related ‘right to justification’. The view that emerged from these discussions is that proportionality is essentially a reasonableness test and that, correspondingly, human and constitutional rights are centrally concerned with reasonable justifications. This essay criticises the focus on reasonableness which neglects the core substantive promise of rights, namely their commitment to human dignity. It argues that the three dignitarian principles of intrinsic value, moral autonomy, and fundamental equality form the substantive core of rights, and it demonstrates that this is consistent with and creates a stronger moral foundation for contemporary rights adjudication and the culture of justification.
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