Following the global success of the principle of proportionality in human and constitutional rights adjudication, there is now an emerging debate among academics and judges in the United States as to whether proportionality ought to be introduced into U.S. constitutional law. My goal in this paper is to correct what I see as a misleading simplification in this discussion, namely the view that the United States could introduce proportionality while leaving the other features and characteristics of its constitutional rights jurisprudence intact. I argue that if proportionality is adopted, coherence requires that the other features of what in previous work I have labelled “the global model of constitutional rights” be embraced as well: rights inflation, positive obligations, socio-economic rights, and horizontal effect. Thus, proportionality is not just an isolated standard of review but part and parcel of a conception of rights that must be adopted or rejected as a whole.

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On the last page of their book, Moshe Cohen-Eliya and Iddo Porat invite their readers to weigh the advantages and disadvantages of adopting proportionality, and they express the hope that their book will have provided a starting-point for such work. The first two sections of the paper take up this invitation by assessing the moral appeal of what Cohen-Eliya and Porat identify as proportionality’s rival, namely the US model, and more specifically, the intent-based conception of rights and the culture of authority which in their view lie at its heart. My argument will be that both the intent-based conception of rights and the idea of a culture of authority are morally deficient and that if one fixes their problems, one will end up with the proportionality-based model (which I will refer to as the ‘global model’). In the final section, I will argue that this result throws doubts upon Cohen-Eliya’s and Porat’s claim that the intent-based conception and the culture of authority are at the heart of US constitutional culture. I will claim that the lack of moral appeal of their account provides a prima facie reason against its validity as a culturally reconstructive theory, and I tentatively suggest that the global model should be considered as a candidate explaining US constitutional culture as well.

This essay responds to Virgílio Afonso da Silva, Alon Harel, and Iddo Porat, who offered critical comments on my book The Global Model of Constitutional Rights at a symposium at the Hebrew University of Jerusalem in December 2013. The paper deals with, first, questions relating to the methodology of my book (in particular the nature of my theory as morally reconstructive, and its global character), second, the role of autonomy (in particular its relation to equality, and my defence of a general right to autonomy), and third, the problem of justification (outcome-based versus excluded reasons-based ways of reasoning about questions of rights).

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Francisco Urbina argues in his reply to my article "Proportionality: Challenging the Critics" (below) that my conceptions of proportionality and balancing are deficient. In particular, he takes issue with my claim that the doctrine of balancing requires the judge to resolve a conflict of interests in line with sound moral principles (as opposed to consequentialist or mechanical ways of quantification and comparison). Urbina argues that while this is the only defensible account of balancing, it is still unattractive because it fails to provide judges with moral guidance. In this rejoinder, I show that the moral guidance that Urbina is attracted to can only be had at the cost of justice.

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The essay argues that Part 2 of Reasoning Rights, which is about proportionality in rights adjudication, fills an important gap in the literature on proportionality by focussing on the proportionality test, as opposed to the pros and cons of proportionality in the abstract. While proportionality is used by almost all courts deciding human or constitutional rights issues, there is no agreement on, and indeed not even a conversation about, the proper construction of the test. Bilchitz's, von Bernstorff's, and Yowell's contributions are the beginning of this important global conversation.

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The paper presents a theory of the moral structure of international human rights. It proceeds by drawing on recent scholarship on the philosophy of national constitutional rights, which has shown that there is now an emerging global consensus on certain structural features of constitutional rights; in previous work I have summarised this under the label 'the global model of constitutional rights'. Starting from the theory of rights underlying the global model, the paper asks what modifications, if any, are required to turn that theory into a suitable theory of international human rights. In particular, it examines the widely held view that international human rights are more minimalist than national constitutional rights. Discussing recent work by Ronald Dworkin (on political/constitutional versus human rights) and Joseph Raz (on legitimate authority versus national sovereignty), the paper concludes that it is not possible to make rights more minimalist than they already are under the global model. It follows that the moral structures of national constitutional rights and international human rights are identical. The final section of the paper examines some implications of this result, addressing the issues of the workability of the proposed conception of international human rights in practice, its point and purpose, and discussing the obligations of states to participate in international mechanisms for the protection of human rights.

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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.

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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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