U.S. constitutional law, proportionality, and the global model

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

A response to Afonso da Silva, Harel, and Porat

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. Their comments, together with this response, will be published in the Jerusalem Review of Legal Studies. 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 reasonsbased ways of reasoning about questions of rights)

Ritual male circumcision and parental authority

A recent judgment by a lower court in Germany brought the problem of ritual male circumcision to the consciousness of the wider public and legal academia. This essay weighs in on this emerging discussion and argues that ritual male circumcision is not covered by parental authority because it violates the human rights of the boy on whom it is imposed. It first considers and dismisses the best interest test of parental authority which, by focusing on the well-being of the child as opposed to his (future) autonomy, fails to take the boy’s human rights sufficiently into account. Instead, the essay proposes what it terms the autonomy conception of parental authority, according to which parental authority must be exercised such as to ensure that the child will become an autonomous adult. While parents may raise their child in line with their ethical, including religious, convictions, respect for his autonomy requires that this be done in a way that allows the child to later distance himself from these values; this implies, among other things, that irreversible physical changes are impermissible. This conclusion holds even if it could be assumed that the child would later come to endorse his circumcision: a proper understanding of autonomy implies that the religious sacrifice of a body part can only be authorised by the person whose body it is. Thus, ritual male circumcision is outside the scope of parental authority because it usurps the child’s right and responsibility to become the author of his own life

Dworkin's theory of rights in the age of proportionality

There is probably no conceptualisation of rights more famous than Ronald Dworkin’s claim that they are ‘trumps’. This seems to stand in stark contrast to the dominant, proportionality-based strand of rights discourse, according to which rights, instead of trumping competing interests, ultimately have to be balanced against them. The goal of this article is to reconcile Dworkin’s work and proportionality and thereby make a contribution to our understanding of both. It offers a critical reconstruction of Dworkin’s theory of rights which does away with the misleading label of rights as ‘trumps’ and shows that, far from being in conflict with proportionality, properly understood Dworkin’s work supports and supplements that doctrine and provides a much-needed account of its moral foundation as being about human dignity, freedom, and equality

From constitutional to human rights: on the moral structure of international human rights

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

Let's talk about circumcision

A proposal to ban circumcision for non-medical reasons in Iceland has generated a heated debate over whether banning the practice would amount to an attack on religious freedom. Kai Möller outlines his own opposition to male circumcision, and argues in favour of an open debate over the issue in which both sides are respected and there is an attempt to reach common ground

The proportionality of lockdowns

Proportionality is the test used by courts in the liberal-democratic world to determine the justifiability and legitimacy of repressive state measures. This chapter considers whether the lockdowns imposed in the context of the Covid-19 pandemic were proportionate and thus legally and morally justifiable. It points out three pathologies of the political and public discourse around lockdowns, all of which relate to the final stage of the test, which examines the appropriateness of the balance struck between the severity of the restriction on freedom and the public interest in protecting health and lives. First, by focusing in a one-sided way on the protection of life, the public and political discourse neglected the question of the severity of the restriction on freedom and, relatedly, the costs of lockdowns, in particular their social, medical, psychological, cultural, and economic costs. Second, by de facto placing a taboo on the question of the relevance of the age distribution of the people dying from Covid-19, a proper consideration of this relevant factor was prevented. Third, the considerations that were regarded as determinative in striking the balance between protecting life and guaranteeing freedom, namely the protection of the health services from being overburdened and/or giving preference to human life as the highest value, were normatively unconvincing. Because of the complexity of, in particular, the empirical questions, this chapter and its single author cannot reach a confident conclusion as to the proportionality of the recent lockdowns. It does, however, show that the public and political discourse was biased in favour of lockdowns and offers a doctrinal structure as well as normative reflection on how to conduct the proportionality assessment properly

Justifying the culture of justification

The ideas of the culture of justification-according to which it is the role of the courts to ensure that every act of the state that affects a person is substantively justifiable-and the related right to justification-which claims that every person possesses a moral and, ideally, constitutional right to the justification that the culture of justification recommends-are intuitively powerful and widely discussed ideas in public law scholarship, but their moral foundation is not yet well understood. This article presents the moral case for these two concepts, which centers on the status of every person as a justificatory agent. It argues that under conditions of reasonable disagreement in politics, this status requires that any law or act be justified not only procedurally (e.g. in terms of a democratic vote) but also substantively, and it further demonstrates the necessity of the judicial protection of the right to justification as a matter of principle

Lüth and the ‘objective system of values’: from ‘limited government’ towards an autonomy-based conception of constitutional rights

Forthcoming in S. Choudhry, M. Hailbronner & M. Kumm, eds., Global Canons in an Age of Uncertainty: Debating Foundational Texts of Constitutional Democracy and Human Rights (Oxford University Press, 2022). In its Lüth judgment of 1958, the German Federal Constitutional Court famously claimed that the German Basic Law erects an ‘objective system of values’ (objektive Wertordnung) in its section on rights. This paper shows that Lüth was the birth hour of the now globally dominant conception of constitutional rights, according to which rights are not primarily concerned with the limitation of the power of the state (or ‘limited government’) but rather with the adequate protection of the right-holder’s personal autonomy. As an exception to this trend, the paper considers and discusses the U.S. Supreme Court’s judgment in DeShaney v. Winnebago County of Social Services. It concludes by spelling out some of the implications of the commitment to an autonomy-based conception of rights and outlines how these have been addressed in the theoretical literature in the decades since Lüth was decided, including in the theories of rights as principles (Robert Alexy), judicial review as Socratic contestation and as giving effect to the fundamental right to justification (Mattias Kumm), the culture of justification (Moshe Cohen- Eliya and Iddo Porat, among others), and the global model of constitutional rights (in my own work)