The principle of proportionality has enjoyed extraordinary success over the last decades: it has become a staple of international and constitutional adjudication on fundamental rights; it has been espoused by civil and common law judges alike, and described as the “principle of principles” and the “ultimate rule of law”. But what does proportionality mean for the idea of human rights? Can it be based on anything other than a utilitarian conception of rights?
The Freedom Rights Project’s Guglielmo Verdirame examines the impact the principle of proportionality has had on the protection of fundamental human rights:“Proportionality has an important role to play in many areas of public and administrative law, but the idea of fundamental rights is to protect, as far as possible, a select group of entitlements from other considerations- be they utility, convenience or public interest. If we allow these considerations to encroach upon fundamental rights in an almost open-ended way, we are effectively downgrading fundamental rights to a different status… As far as legal doctrine goes, there may thus be a case for seeking to infuse a better spirit into proportionality. But, as far as a normative theory of rights and our public culture of rights are concerned, we are much better off without it.”
Read the full article on SSRN here.
The article also features as a chapter in Cruft, Liao, Renzo (Eds.) Philosophical Foundations of Human Rights (Oxford University Press, 2014).