Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement
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Description
What do you have in virtue of having a right? Are rights ‘trumps’ over competing considerations of policy? Do they have priority over ‘the good’ in some strong sense? Are rights ‘firewalls’ providing strong protections against demands made by the political community? Even though there are interesting and significant differences between conceptions of rights in the liberal tradition, they generally share the idea that something protected as a matter of right may not be overridden by ordinary considerations of policy. Circumstantial all-things-considered judgements on what is in the general welfare are generally insufficient grounds to justify infringements of rights. Reasons justifying an infringement of rights have to be of a special strength. Yet this claim of a special priority of rights sits uneasily with a prominent feature of constitutional and human rights adjudication. As comparative constitutional scholars have pointed out, a general feature of rights analysis all over the world is some version of a proportionality test. Though proportionality analysis does have a role to play in US constitutional practice as well, it is a more prominent and more explicitly embraced feature of rights reasoning under constitutions or treaties established after the Second Word War. Proportionality is widely used as a test by judiciaries to determine the limit of a constitutionally guaranteed right. An act of a public authority that infringes the scope of a protected right can still be justified, if it can be shown to pursue legitimate purposes in a proportional way. Only acts by public authorities that are disproportionate will be struck down on the grounds that they violate an individual’s right. But does the proportionality test provide an adequate structure for assessing rights claims? Can it do justice to the basic liberal intuition that rights enjoy some kind of special priority over considerations of public policy, and that reasons overriding rights must be of some special, compelling strength? This chapter will proceed in two parts. The first will provide a brief description and further illustration of an account of rights that puts proportionality analysis front and centre. The purpose of this part is to provide a better understanding of the proportionality test and its connection to rights. This part will draw on Robert Alexy’s influential theory of constitutional rights. The second part will assess whether and to what extent such a conception of rights can adequately accommodate basic commitments of Political Liberalism. Within the tradition of Political Liberalism there are three basic ideas that are connected to the idea of the special priority of rights, which I will refer to as antiperfectionism, anticollectivism and anticonsequentialism, respectively. The implications of each of these ideas for an adequate structure of rights will then be assessed. As will become clear, reasoning about rights has a more complex structure than the focus on proportionality analysis suggests. The proportionality structure is rightly a central feature of rights reasoning, but it is merely one of three distinct structural elements central to reasoning about rights as a matter of political morality. Other structural features of rights discourse include the idea of excluded reasons and the prohibitions of certain means-ends relationships. Furthermore, there are institutional considerations that sometimes justify imposing additional requirements on the justification for an infringement of a right, requiring reasons of special strength. There is no one structural element that is the defining feature of rights reasoning. Rights reasoning, as it occurs in the practice of courts and tribunals worldwide, reflects the structural richness of reasoning about political morality. The language of rights in human and constitutional rights practice merely provides a way to structure the assessment of policy choices as they relate to affected individuals. What you have in virtue of having a right is as strong or as weak as the proposition of political morality that the claim is grounded in. Analysing the structure of rights reasoning helps provide a clearer understanding of the structural complexity of a liberal political morality. Additionally, it helps guard against a narrow understanding of rights that unconvincingly ties the very idea of rights to a particular moral structure.
Source Publication
Law, Rights and Discourse: The Legal Philosophy of Robert Alexy
Source Editors/Authors
George Pavlakos
Publication Date
2007
Recommended Citation
Kumm, Mattias, "Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement" (2007). Faculty Chapters. 1071.
https://gretchen.law.nyu.edu/fac-chapt/1071
