Proportionality is the most important principle of constitutional rights law around the world, but our theoretical grasp of both the principle itself and the conception of rights of which it is the crucial part is still emerging. The goal of this chapter is to contribute to the scholarly discussion on proportionality by exposing and exploring an important link between proportionality and rights inflation, ie the phenomenon that increasingly relatively trivial interests are protected as rights. My claim is that proportionality is not only compatible with rights inflation, but that it necessitates it: under a theory of rights which endorses proportionality, there is no coherent way to avoid the conclusion that all (autonomy) interests should be protected as rights, and this includes interests in engaging in trivial and even immoral activities. While this intuitively implausible result may strengthen some in their doubts about or rejection of proportionality, this chapter will proceed by showing that, while my argument, if correct, necessitates the revision of some widely held views about the nature and justification of human and constitutional rights, there is nothing incoherent or unattractive about such a view. On the contrary, rights inflation and proportionality are part and parcel of an attractive conception of constitutional rights.

This introductory chapter of my new book The Global Model of Constitutional Rights (OUP 2012) gives an overview of the project of the book and identifies the existence of the global model of constitutional rights. It then explains the terminology – in particular the use of the terms ‘constitutional’ and ‘global’ –, the reconstructive methodology, and addresses the question of whether the US tradition of constitutional rights law forms part of the global model. It concludes by providing a summary of the book’s main claims.

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While the principle of proportionality has been the most important doctrinal tool in constitutional rights law around the world for decades, constitutional theorists have only recently begun to develop theoretical accounts of it. Even more recently, a few scholars have come forward with critiques of the doctrine’s usefulness, in particular with regard to its assumed failure to adequately address the moral issues and the assumed impossibility or impressionistic nature of balancing. This paper examines the arguments of the critics and concludes that they have failed to make a convincing case against proportionality.

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One of the puzzles of human and constitutional rights law is whether there are any rights which are absolute. The question is important not only for practical purposes but also for the theory of human and constitutional rights: an absolute right presents a departure from what is now the ‘default’ in constitutional and human rights law around the world, namely the proportionality approach according to which an interference with a right is justified if it serves a legitimate goal and is proportionate to that goal. This paper tries to shed some light on the issue by focussing on the right to life. It proceeds by first presenting an account of the leading case in this area, namely the judgment of the German Federal Constitutional Court in the Aviation Security Act case, where the Court held that shooting down an airplane which was likely to be used as a terrorist weapon was a violation of the right to life in conjunction with the human dignity of the innocent passengers aboard. It then offers a few thoughts on the Court’s reasoning, specifically with regard to what it has to say about the idea of absolute rights. Having concluded that the judgment offers little help in illuminating this problem, it presents some approaches to absolute rights from moral philosophy and applies them to human and constitutional rights law. The conclusion is that the right to life will under certain circumstances be absolute or near-absolute, but that these circumstances occur less frequently than is sometimes assumed.

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In the jurisprudence of constitutional courts around the world, there is an emerging trend towards an autonomy-based understanding of constitutional rights: increasingly, rights are interpreted as being about enabling people to live autonomous lives, rather than disabling the state in certain ways. This essay investigates the conception of autonomy employed by courts by presenting two candidates and examining which of them explains better the current practice of constitutional rights law. The first, labelled the excluded reasons conception of autonomy, claims that a person’s autonomy is violated if he is treated on the basis of certain impermissible – in particular moralistic or paternalistic – reasons. It is concluded that while this is a coherent understanding of autonomy, it cannot explain many of the rights which are widely accepted today. The second, the protected interests conception, argues that a person has autonomy interests in controlling certain domains of her life, and offers a scale on which the importance of the various autonomy interests can be assessed. The essay demonstrates that this conception is coherent and adequately explains the current practice. The final section briefly explores some implications of this result for a comprehensive reconstructive theory of constitutional rights.

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There are important differences between reasoning with constitutional rights and reasoning with moral fundamental rights. One of them is that constitutional courts around the world employ a balancing or proportionality test in order to determine the limits of rights, whereas many philosophers reject such an approach. In his book ‘A Theory of Constitutional Rights’, Robert Alexy develops a comprehensive conception of constitutional rights, his central thesis being that they are optimization requirements and, as such, necessarily open to balancing. The essay reviews the success of Alexy's claim and concludes that he ultimately fails to demonstrate that balancing holds a rightful place in constitutional rights reasoning.

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One of the laws passed in Germany as a response to the terrorist attacks of September 11, 2001 is the Aviation Security Act (Luftsicherheitsgesetz). Its most controversial part was the section that gave the Minister of Defence permission to order the shooting down of a hijacked passenger plane in a 9/11 scenario. In 2005, the German Federal Constitutional Court ruled that this part of the Aviation Security Act violated the right to life in conjunction with the human dignity of the innocent passengers aboard the plane, and declared it void.

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