The Non-Identical Twins in UK Public Law: Reasonableness and Proportionality

Ever since the Wednesbury decision in 1947 UK courts and UK public law scholars have been struggling to comprehend the meaning of ‘reasonableness’ and its relation to ‘proportionality’. The main purpose of this article is to promote conceptual clarity in UK public law by describing the nature of reasonableness and proportionality as grounds of judicial review and by highlighting the overlooked similarities and differences between them. The main arguments of this article are that (1) reasonableness is in its essence a balancing and weighing test; (2) proportionality adds very little to already existing grounds of judicial review in UK public law; (3) this addition is not necessarily focused on the administrative weighing and balancing process; and (4) since proportionality adds very little to already existing grounds of judicial review, no conceptual or normative reason prevents having proportionality as a general ground of judicial review in UK public law

Conscientious Objection and Equality Laws: Why the Content of the Conscience Matters

By enacting equality laws the liberal state decides the limits of liberal tolerance by relying on content-based rather than content-neutral considerations. Equality laws are not and cannot be neutral. They reflect a content-based moral decision about the importance and weight of the principle of equality vis-à-vis other rights or interests. This leads to the following conclusions: First, since equality laws in liberal democracies reflect moral-liberal values, conscientious objections to equality laws rely, almost by definition, on unjustly intolerant, anti-liberal and morally repugnant values. Secondly, we should not shy away from explicitly relying on moral-liberal views when deciding whether it is justified to grant exemptions from equality laws. Thirdly, conscientious objections to equality laws should normally not be tolerated or accommodated by the state, because conscientious objections that rely on what is rightly perceived by the legislature as unjustly intolerant, anti-liberal and morally repugnant values should not be tolerated in a tolerant-liberal democracy

The Immorality and Illegality of Fast-Track Public Services

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The Case for a General Constitutional Right to be Granted Conscientious Exemption

Conscientious exemption is called for when a person’s conscience conflicts with the demands or the requirements of the law. Most of the academic research about the practice of granting conscientious exemptions and its justification explores the question of when such exemptions should be granted. The purpose of this article is to explore the largely neglected, yet highly important and interrelated questions of how conscientious exemptions should be granted—and by whom. The argument proposed is that there is no single model for granting conscientious exemptions that is preferable in all cases. Therefore, conscientious exemptions should be granted in different ways and by different authorities in different cases. These typical cases are discussed throughout the article. The argument that there is no single preferred model for granting conscientious exemptions leads to a more specific argument, namely that, alongside other ways of granting conscientious exemptions, there should always be a general constitutional right to be granted such an exemption

What Are Conscientious Exemptions Really About?

The main argument of this article is that granting conscientious exemptions is best understood as the outcome of tolerance than as a way of applying the idea of equality. It is also argued that perceiving the right to be granted conscientious exemptions (if such a right indeed exists) as either an individual right, a communal right, a minority right or a means of applying affirmative action would fail, in too many cases, to describe correctly the practice of granting conscientious exemptions. Finally, granting conscientious exemptions is better understood as the outcome of tolerance than as a way of applying the idea of equality. The principle of tolerance successfully describes the practice of granting conscientious exemptions in almost all cases. It offers the best description of the state of mind and the behaviour of the state and it is wide yet precise enough to accommodate all the other—however contradictory—explanations

The case for modest constitutional instrumentalism

Book review: Why Law Matters. By Alon Harel. 2014. Oxford: Oxford University Press, pages xii, 240. Reviewed by Yossi Nehushta