Human Dignity and Proportionality: Deontic Pluralism in Balancing

Abstract

The proportionality test is at the heart of much of contemporary human and constitutional rights adjudication. It is the central structural feature of a rights-based practice of justification. Notwithstanding its widespread acceptance, a number of challenges have been brought forward against it. Perhaps one of the most serious is the claim that an understanding of rights that makes the existence of a definitive right dependant on applying a proportionality test undermines the very idea of rights.4 In the liberal tradition, rights are widely imagined as “trumps” over competing considerations of policy. They are claimed to have priority over “the good” in some strong sense. They are described as “firewalls” providing strong protections against demands made by the political community. And they are thought to be grounded in human dignity, which in turn is held to be inviolable.9 Even though there are interesting and significant differences between conceptions of rights in the liberal tradition, they generally share the idea that something protected as a matter of right may not be overridden by ordinary considerations of policy. Circumstantial all-things-considered judgments regarding what serves the general welfare are generally thought to present insufficient grounds to justify infringements of rights. If human dignity is inviolable, and rights are grounded in human dignity, must they not provide for very strong, perhaps even absolute, constraints on what governments may impose? Can a human and constitutional rights practice that puts proportionality analysis front and centre capture this core deontological feature of rights grounded in human dignity? Is not the proportionality test a misguided and dangerous invitation to balance away human dignity? In an earlier article one of us argued that any plausible structure of rights must be able to accommodate core anti-perfectionist, anti-collectivist, and anti-consequentialist ideas underlying the liberal democratic rights tradition. Whereas proportionality analysis could adequately accommodate anti-perfectionist commitments (by screening out, as illegitimate ends, perfectionist purposes in the first prong of the proportionality test) and anti-collectivist commitments (by weighing correctly the relevant considerations when conducting the balancing test), there were certain structural features of political morality that could not be adequately captured by the proportionality framework. More specifically, there existed a distinct class of cases, characteristically involving the protection of human dignity, where even measures meeting the proportionality test could still constitute a violation of rights. The idea of human dignity, it was argued, was connected to deontological constraints in a way that the proportionality test could not adequately take into account. The task was to distinguish those types of cases from ordinary cases to which proportionality analysis properly applied. If that distinction was not made, there was indeed a danger that human dignity would be balanced away. Because this is a position that embraces the proportionality test generally, but insists on carving out a distinct category of cases involving human dignity in which rights provide stronger, more categorical protection, this position might be called human dignity exceptionalism. Others have since then either endorsed or criticized this position. We argue here that human dignity exceptionalism is false. Whereas it was right to insist that the structure of political morality is not automatically captured by the four prongs of the proportionality test—at least not if the balancing prong is used in a fundamentally consequentialist way—the proportionality test and the idea of balancing in particular is flexible enough to allow for the structural complexities of political morality to be taken into account. The article was misguided in carving out a relatively narrow set of issues and limiting the idea of deontological constraints to them. Here we will illustrate how constraints that are not merely consequentialist operate in very different ways and inform the reasoning that takes place within the balancing test across a much wider range of cases. Deontology is ubiquitous, and there is nothing in the idea of balancing that precludes taking it into account. Indeed, balancing properly understood requires it to be taken into account.

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