Webber, Grégoire C. N. (2016) Proportionality and absolute rights. In: Jackson, Vicki and Tushnet, Mark, (eds.) Proportionality: New Frontiers, New Challenges. Cambridge University Press, New York, USA.
Full text not available from this repository.Abstract
What is the relationship between absolute rights and the principle of proportionality? Proponents of proportionality in human rights law adopt one of two answers to this question: proportionality is inapplicable to absolute rights or absolute rights are no more than generalised predictive conclusions of proportionality analysis. Both answers share the following in common: proportionality is incompatible with absolute rights. That incompatibility is a function of the dominant conception of rights in proportionality analysis, a conception that divorces rights from the relationships between persons constitutive of rights and right relations. My argument begins by reviewing how absolute rights earn their claim to being absolute in part because they identify duties held by persons not to perform certain acts (sec. I). The relationship between absolute rights and the specification of rights is explored next by reviewing the ways in which the doctrine of proportionality struggles with absolute rights (sec. II). This review highlights how rights are imperfectly constituted by proportionality proponents (sec. III) and in need of proper specification so as to align their normative force and scope (sec. IV). This account of specified rights as candidates for absolute status is then defended against criticism by Aharon Barak and Kai Möller (sec. V), before exploring how the specification of rights is secured both by morality and by law (sec. VI).
| Item Type: | Book Section |
|---|---|
| Official URL: | http://www.cambridge.org/ |
| Additional Information: | © 2016 Cambridge University Press |
| Divisions: | Law |
| Subjects: | J Political Science > JC Political theory |
| Date Deposited: | 04 May 2016 08:24 |
| Last Modified: | 13 Sep 2024 17:32 |
| URI: | http://eprints.lse.ac.uk/id/eprint/66318 |
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