Rescuing Proportionality

Abstract

This chapter addresses the normative foundations of the principle of proportionality, as used in human rights adjudication. The first part of the chapter mounts a critique against the orthodox conception of the doctrine, according to which the point of proportionality is to balance rights against other considerations (such as public interest, or the rights of others) with view to optimise the realisation of all the relevant values. The second part of the chapter offers an alternative account of the principle of proportionality. Proportionality has a moral dimension, which is to demarcate separate moral practices and the values that govern them. In the case of human rights, proportionality demarcates state action and picks out a dimension of the fundamental value of equal respect and concern. The chapter argues that this egalitarian conception of proportionality better fits and justifies central aspects of human rights law.