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Proportionality and absolute rights

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.

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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
Sets: Departments > Law
Date Deposited: 04 May 2016 08:24
Last Modified: 15 Jul 2019 23:16
URI: http://eprints.lse.ac.uk/id/eprint/66318

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