Beyond Reasonableness: The Dignitarian Structure of Human and Constitutional Rights

Forthcoming, (2021) 34(2) Canadian Journal of Law & Jurisprudence

LSE Legal Studies Working Paper No. 01/2021

25 Pages Posted: 14 Apr 2021

See all articles by Kai Möller

Kai Möller

London School of Economics - Law School

Date Written: March 27, 2021

Abstract

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.

Suggested Citation

Möller, Kai, Beyond Reasonableness: The Dignitarian Structure of Human and Constitutional Rights (March 27, 2021). Forthcoming, (2021) 34(2) Canadian Journal of Law & Jurisprudence, LSE Legal Studies Working Paper No. 01/2021, Available at SSRN: https://ssrn.com/abstract=3813810 or http://dx.doi.org/10.2139/ssrn.3813810

Kai Möller (Contact Author)

London School of Economics - Law School ( 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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