About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

LOG IN
LOG IN


56 German Y.B. Int'l L. 385 (2013)
Absolute Rights and Proportionality

handle is hein.journals/gyil56 and id is 386 raw text is: Absolute Rights and Proportionality MARTIN BOROWSKI ABSTRACT: Certain rights are commonly regarded as absolute sensu stricto, that is to say, they lend themselves neither to limitation nor to proportionality analysis. Following the received opinion, absolute sensu stricto characterises rights found in Articles 3 and 4 (1) European Convention on Human Rights and Articles 1,4 and 5 (1) Charter of Fundamental Rights of the European Union. I shall argue, to the contrary, that the basic rights commonly regarded as absolute are not absolute sensu stricto. Rather, proportionality analysis that is employed elsewhere can and should be used here, too. Why so? The merit of a reconstruction of these rights in terms of proportionality analysis is the explanation that it provides, namely, why it is that these rights enjoy, for all intents and purposes, an 'absolute' standing. Thus, the dogmatic, not to say a priori character of absolute rights sensu stricto yields to an understand- ing of these rights in terms of the very machinery used elsewhere in proportionality analysis. KEYWORDS: Absolute Rights, Proportionality, Balancing, Empirical Certainty, Relative Absoluteness, Human Dignity, Torture I. Introduction In ever greater numbers, constitutional lawyers have come to appreciate that the doctrine of proportionality is a crucial factor in assessing claims that stem from basic rights. Still, we are told that certain rights, call them 'absolute rights,' are not amena- ble to proportionality analysis. Is this a defensible position? I have my doubts, and I will be arguing that the ostensibly 'absolute character' of these rights can - and ought to - be reconciled with the doctrine of proportionality. That is to say, these rights, too, lend themselves to reconstruction in terms of balancing, which, in turn, takes its cues from the doctrine of proportionality. To be sure, in practical circumstances the structural properties of balancing along with fundamental rules respecting the assign- * Professor for Public Law, Constitutional Theory, and Legal Philosophy, University of Heidelberg. I wish to thank RobertAlexy, Stephen Greer, Stanley L. Paulson, and GeorgePavlakos for helpful comments.