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Philosophical Foundations of Human Rights$
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Rowan Cruft, S. Matthew Liao, and Massimo Renzo

Print publication date: 2015

Print ISBN-13: 9780199688623

Published to Oxford Scholarship Online: June 2015

DOI: 10.1093/acprof:oso/9780199688623.001.0001

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Rescuing Proportionality

Rescuing Proportionality

Chapter:
(p.316) 17 Rescuing Proportionality
Source:
Philosophical Foundations of Human Rights
Author(s):

George Letsas

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199688623.003.0018

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.

Keywords:   human rights theory, proportionality, teleological, legal doctrine, egalitarian rights

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