Accessibility navigation


Whatever works: proportionality as a constitutional doctrine

Kyritsis, D. (2014) Whatever works: proportionality as a constitutional doctrine. Oxford Journal of Legal Studies, 34 (2). pp. 395-415. ISSN 0143-6503

Full text not archived in this repository.

It is advisable to refer to the publisher's version if you intend to cite from this work. See Guidance on citing.

To link to this item DOI: 10.1093/ojls/gqt033

Abstract/Summary

In The Global Model of Constitutional Rights Kai Möller claims that the proportionality test is underlain by an expansive moral right to autonomy. This putative right protects everything that advances one’s self-conception. It may of course be limited when balanced against other considerations such as the rights of others. But it always creates a duty on the state to justify the limitation. Möller further contends that the practice of proportionality can best be understood as protecting the right to autonomy. This review article summarizes the main tenets of Möller’s theory and criticizes them on two counts. First, it disputes the existence of a general right to autonomy; such a right places an unacceptably heavy burden on others. Second, it argues that we do not need to invoke a right to autonomy to explain and justify the main features of the practice of proportionality. Like other constitutional doctrines, proportionality is defensible, if it is grounded in pragmatic –mainly epistemic and institutional- considerations about how to increase overall rights compliance. These considerations are independent of any substantive theory of rights.

Item Type:Article
Refereed:Yes
Divisions:Faculty of Arts, Humanities and Social Science > School of Law
ID Code:37875
Uncontrolled Keywords:proportionality balancing human rights autonomy judicial review constitutionalism
Publisher:Oxford University Press

University Staff: Request a correction | Centaur Editors: Update this record

Page navigation