- Title Pages
- The Philosophical Foundations of Human Rights
- 1 On the Foundations of Human Rights
- 2 Response to John Tasioulas
- 3 Human Rights as Fundamental Conditions for a Good Life
- 4 From a Good Life to Human Rights Some Complications
- 5 Is Dignity the Foundation of Human Rights?
- 6 Human Rights, Natural Rights, and Human Dignity
- 7 Personal Deserts and Human Rights
- 8 Can Moral Desert Qualify or Justify Human Rights?
- 9 A Social Ontology of Human Rights
- 10 Human Rights, Human Dignity, and Power
- 11 Human Rights in the Emerging World Order
- 12 Joseph Raz on Human Rights A Critical Appraisal
- 13 Why International Legal Human Rights?
- 14 Human Rights Pragmatism and Human Dignity
- 15 Human Rights and Constitutional Law
- 16 Specifying Human Rights
- 17 Rescuing Proportionality
- 18 Rescuing Human Rights from Proportionality
- 19 Free Speech as an Inverted Right and Democratic Persuasion*
- 20 Free Speech and “Democratic Persuasion”
- 21 Freedom of Religion in a Secular World
- 22 Religious Liberty Conceived as a Human Right
- 23 The Right to Security
- 24 Rights and Security for Human Rights Sceptics
- 25 Self-determination and the Human Right to Democracy
- 26 A Human Right to Democracy?
- 27 The Content of the Human Right to Health
- 28 Do We Have a Human Right to the Political Determinants of Health?
- 29 A Moral Inconsistency Argument for a Basic Human Right to Subsistence
- 30 The Force of Subsistence Rights
- 31 The Relativity and Ethnocentricity of Human Rights*
- 32 Human Needs, Human Rights*
- 33 Liberty Rights and the Limits of Liberal Democracy
- 34 Human Rights Without the Human Good?
- 35 Care and Human Rights
- 36 Care and Human Rights
- 37 Human Rights in Kantian Mode
- 38 Why there Cannot be a Truly Kantian Theory of Human Rights
- (p.316) 17 Rescuing Proportionality
- Philosophical Foundations of Human Rights
- Oxford University Press
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.
Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.
If you think you should have access to this title, please contact your librarian.