Proportionality: An assault on human rights?

Abstract

Balancing is the main method used by a number of constitutional courts around the world to resolve conflicts of fundamental rights. The European Court of Human Rights routinely balances human rights against each other and against conflicting public interests; it has elevated proportionality to the status of a basic principle of interpretation of the European Convention on Human Rights (ECHR). This paper examines the debate on balancing in the context of American constitutional law and the convention and discusses theories that claim some form of balancing is inherent in human rights adjudication. It argues that proportionality constitutes a misguided quest for precision and objectivity in the resolution of human rights disputes, and it suggests that courts should focus, instead, on the real moral issues underlying such disputes. © The Author 2009. Oxford University Press and New York University School of Law. All rights reserved.