Journal Article

Proportionality—a benefit to human rights? Remarks on the I·CON controversy

Matthias Klatt and Moritz Meister

in International Journal of Constitutional Law

Published on behalf of The New York University School of Law

Volume 10, issue 3, pages 687-708
Published in print July 2012 | ISSN: 1474-2640
Published online July 2012 | e-ISSN: 1474-2659 | DOI: http://dx.doi.org/10.1093/icon/mos019
Proportionality—a benefit to human rights? Remarks on the I·CON controversy

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Referring to the recent debate between Stavros Tsakyrakis and Madhav Khosla, this article highlights several important aspects of the proportionality test. It analyzes the relation between proportionality and the rights as trumps model, defending a weak trump model which combines the ideas of trumping and balancing. Furthermore, it demonstrates the proper place of moral considerations in proportionality analysis, and rejects the objection of incommensurability. Other arguments discussed in detail are the view that balancing boils down to mere mathematical calculation, and the problem of definitional generosity. In the last section, the authors examine the European Court of Human Rights’ decision in Otto-Preminger-Institut v. Austria. Overall, the article defends the view that proportionality is a rational and indispensable part of rights reasoning.

Journal Article.  10300 words. 

Subjects: Constitutional and Administrative Law ; UK Politics

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