Proportionality: An Assault on Human Rights?

Balancing is the main method used by a number of constitutional courts around the world to resolve conflicts of fundamentals rights. The European Court of Human Rights is routinely balancing human rights against each other and against conflicting public interests and has elevated proportionality to the status of a basic principle of interpretation of the European Convention on Human Rights. The paper examines the debate on balancing in the context of American constitutional law and the Convention, and discusses theories which claim that some form of balancing is inherent in human rights adjudication. It argues that proportionality constitutes a misguided quest for precision and objectivity in the resolution of human rights disputes and suggests that courts should instead focus on the real moral issues underlying such disputes.