Jump to ContentJump to Main Navigation
Philosophical Foundations of Constitutional Law$
Users without a subscription are not able to see the full content.

David Dyzenhaus and Malcolm Thorburn

Print publication date: 2016

Print ISBN-13: 9780198754527

Published to Oxford Scholarship Online: April 2016

DOI: 10.1093/acprof:oso/9780198754527.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 31 March 2020

Proportionality

Proportionality

Chapter:
(p.305) 15 Proportionality
Source:
Philosophical Foundations of Constitutional Law
Author(s):

Malcolm Thorburn

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198754527.003.0016

In this chapter, the author explores the practice of proportionality justification that is a central feature of constitutional right protection in the many jurisdictions that share the ‘post-war paradigm’ of constitutional rights protection. He suggests that this practice is part of a conception of constitutional rights as structural features of the constitutional order (the ‘Rechtsstaat’), rather than as external limits on state action imposed by the framers of a constitutional document. Constitutional rights, on this account, are regulative principles that serve to direct the activities of the state from the inside in order to ensure respect for the independence of persons. And so the question that the proportionality justification seeks to answer is whether the state’s justification for limiting a right is consistent with such respect.

Keywords:   constitutional rights, justification, proportionality, Rechtsstaat, post-war paradigm

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.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs , and if you can't find the answer there, please contact us .