Introduction: on the limitation of rights

The dialectical function of the principle of proportionality: a European perspective

“…37 Similar arguments have been put forward by Grégoire Webber, who concludes that "despite the pervasiveness of balancing and proportionality in constitutional reasoning, it is not clear that recourse to these ideas is at all helpful in resolving the difficult questions involved in struggling with right-claims". 38 Francisco Urbina sees as the main problem of proportionality the fact that "it abandons an enterprise which is at the heart of legal practice: crafting legal categories able to express the requirements of practical reason in the different types of cases". 39 According to Urbina, "one cannot both allow for open-ended moral reasoning […] and at the same time have the benefits of technicality of law which allows for legally directed adjudication".…”

When Trumps Clash: Dworkin and the Doctrine of Proportionality

“…Thus, those who are sympathetic to proportionality reject the rights as trumps model for failing to acknowledge the conditions under which a right may be justifiably infringed (Barak , 365; Kumm , 131–2; Möller , 460; Thorburn , 310–11). In turn, critics of proportionality conceive of the doctrine as a dangerous confusion that dilutes the categorical protections that rights afford their bearers (Rao , 238; Tsakyrakis , 489; Webber , 110–4). In failing to acknowledge that rights are trumps, proportionality collapses the distinction between rights and interests, principles and policies (Habermas , 258–9; Young , 44 and 48).…”

“…When he discusses limitation clauses in the human rights context, he rejects them as “political compromises” forged to appease countries that do not take rights seriously (Dworkin , 49). And, as critics of proportionality have noted, Dworkin's account of rights does not employ the distinctive terminology that typically attends the application of the doctrine (Webber , 117). Nevertheless, I will argue that when one's focus shifts from Dworkin's words to his ideas, the antagonism between the rights as trumps model and proportionality dissolves.…”

When Trumps Clash: Dworkin and the Doctrine of Proportionality

“…8 Nor does he employ the distinctive terminology that typically attends the application of the doctrine. 9 Nevertheless, I will argue that when one's focus shifts from Dworkin's words to his ideas, the antagonism between the rights as trumps model and the doctrine of proportionality dissolves.…”