The Essence of Rights and the Limits of Proportionality

Abstract

In debates about the strength of rights, constitutional theory and practice have become disconnected. As a matter of constitutional practice, a bifurcated model of the strength of constitutional rights has assumed increasing prominence in recent decades. The model divides the scope of a right into a core (or an essence) and a periphery. The core possesses absolute strength and is therefore not susceptible to limitations. In contrast, the periphery is subject to limitations that satisfy the doctrine of proportionality. While this model is increasingly prevalent in constitutional practice, it has been subject to extensive methodological criticism. Critics claim that the model is defective both because it offers no method of identifying the essence of a right and because it provides no basis for the claim that when the essence of a right is breached, justification is impossible.

This chapter argues that the key to overcoming these methodological challenges lies in appreciating the distinctive doctrines on which the model relies. On the one hand, purposive interpretation identifies the essence of a right with its purpose. Any public act or omission that treats the purpose of a right as a nullity breaches its essence. On the other, there is a conception of proportionality that explains why justification is impossible when the essence of a right is breached. Where each member of the system of rights makes an equally valid claim to implementation, no member may justify the nullification of any other. In this short article, my aim is to defend the bifurcated model by expounding the doctrines on which it relies.

This chapter is part of a festschrift in honour of TRS Allan.

Keywords: constitutional rights, interpretation, essence of rights, proportionality, justification, balancing