New York University Public Law and Legal Theory Working Papers

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Proportionality and the Rule of Law: Rights, Justification, Reasoning, Huscroft, Miller and Webber, eds., Forthcoming


The proportionality test is at the heart of much of contemporary human and constitutional rights adjudication. But some worry that the proportionality test provides a misguided and dangerous invitation to balance away human dignity. In an earlier article, one of us argued that there existed a distinct class of cases, characteristically involving the protection of human dignity, where measures meeting the proportionality test could still constitute a violation of rights. The task was to distinguish those cases from ordinary cases, for which proportionality analysis was normatively adequate. Because this is a position that embraces the proportionality test generally, but insists on carving out a distinct category of cases involving human dignity in which rights provide stronger, more categorical protection, this position might be called human dignity exceptionalism.

We argue here that human dignity exceptionalism is false. Deontology is ubiquitous, and there is nothing in the idea of balancing that precludes taking it into account. Indeed, balancing properly understood requires it to be taken into account. More specifically the article seeks to establish two core points about balancing. The first is negative. Balancing is not a mechanical exercise. Balancing is a metaphor we use to describe a residual category within rights analysis that registers the importance of the various concerns at stake. The idea of balancing itself says nothing about what kind of things are relevant or what weight to assign the relevant concerns. The second point is positive. Deontology, if taken seriously, is not captured by a single, simple concept, such as the restriction against using people simply as a means. Rather, it covers a range of reasons for giving some interests more or less priority over others. In that sense we argue for an understanding of deontology as itself structurally pluralist (call this 'deontic pluralism'). We offer no comprehensive conception of balancing that determines what the right balance will be in all cases. We argue only that the balance will have to make appropriate reference to constraints that arise out of what is required to respect dignity and illustrate what that means across the range of chosen cases: instrumentalizing individuals against their will, the relatively strict standards of proof in criminal proceedings, and the conditions under which long-term preventive detention can be legitimately authorized.

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dignity, proportionality, human rights, constitutional rights