What Do You Have in Virtue of Having a Constitutional Right? On the Place and Limits of the Proportionality Requirement
LAW, RIGHTS, DISCOURSE: THEMES OF THE WORK OF ROBERT ALEXY, Paulsen, G. Pavlakos, eds., Hart, 2007
47 Pages Posted: 17 Dec 2006
What do you have in virtue of having a constitutional right? In which way, if at all, are rights 'trumps', 'firewalls', or enjoy some kind of 'special priority' over competing considerations of policy? Even though there are interesting and significant differences between conceptions of rights in the liberal tradition, they generally share the idea that something protected as a matter of right may not be overridden by ordinary considerations of policy. Yet this claim of a special priority of rights sits uneasily with a prominent feature of global constitutional rights practice. As comparative constitutional scholars have pointed out, a pervasive feature of constitutional rights analysis all over the world - less pronounced in the U.S. and often obscured by all sorts of rights specific multi-prong tests - is some version of a proportionality test. Proportionality is widely used as a test by judiciaries to determine the limit of a constitutionally guaranteed right. The question pursued here is whether the idea of proportionality provides an adequate structure for the assessment of rights claims as a matter of political morality or whether the language of rights is more appropriately connected with a more categorical structure. I argue that the language of rights is not plausibly associated only with one particular structure. The proportionality structure is rightly a central feature of rights reasoning, but it is merely one of three distinct structural elements central to reasoning about rights as a matter of political morality. Other structural features of rights discourse include the idea of excluded reasons and deontological restrictions relating certain means-ends relationships. Furthermore there are institutional considerations that sometimes justify imposing additional requirements on the justification for an infringement of a right, requiring reasons of special strength. Rights reasoning is neither the deontological part of political morality, nor is it appropriately reduced to consequentialist balancing. Analyzing the structure of rights reasoning helps guard against a narrow understanding of rights that unconvincingly ties the very idea of rights to a particular moral structure. It also helps provide a clearer understanding of the structural complexity of liberal political morality. And it pushes us to reconsider what the function of rights discourse and rights adjudication might be.
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