Balancing, Proportionality, and Constitutional Rights

In the theory and practice of constitutional adjudication, proportionality review plays a crucial role. At a theoretical level, it lies at core of the debate on rights adjudication; in judicial practice, it is a widespread decision-making model characterizing the action of constitutional, supra-national and international courts. Despite its circulation and centrality in contemporary legal discourse, proportionality in rights-adjudication is still extremely controversial. It raises normative questions—concerning its justification and limits—and descriptive questions—regarding its nature and distinctive features. The chapter addresses both orders of questions. Part I centres on the justification of proportionality review, the connection between proportionality, balancing and theories of rights and the critical aspects of this connection. Part II identifies and analyses the different forms of proportionality both in review, as a template for rights-adjudication, and of review, as a way of defining the scope and limits of adjudication

Proportionality: An assault on human rights?

Balancing is the main method used by a number of constitutional courts around the world to resolve conflicts of fundamental rights. The European Court of Human Rights routinely balances human rights against each other and against conflicting public interests; it has elevated proportionality to the status of a basic principle of interpretation of the European Convention on Human Rights (ECHR). This paper examines the debate on balancing in the context of American constitutional law and the convention and discusses theories that claim some form of balancing is inherent in human rights adjudication. It argues that proportionality constitutes a misguided quest for precision and objectivity in the resolution of human rights disputes, and it suggests that courts should focus, instead, on the real moral issues underlying such disputes. © The Author 2009. Oxford University Press and New York University School of Law. All rights reserved

Neutrality in the classroom

In Lautsi v. Italy the Grand Chamber of the European Court of Human Rights decided that the display of the crucifix on the classroom walls of Italian state schools is compatible with the European Convention of Human Rights. In this article we develop an account of neutrality, which militates against the decision of the Grand Chamber and vindicates the claimants. Its gist is that neutrality is not only infringed, when individuals are coerced by the state to pursue a certain religious faith or attitude, but also when the state endorses a religious faith or attitude in regulating areas of social life that pertain to one's status as free and equal member of the political community. Breaches of neutrality, thus understood, constitute a violation of the right to religious freedom. They are also not amenable to a proportionality assessment and impose a uniform standard for all members of the Council of Europe. The display of the crucifix in Italian state schools falls short of this standard. © The Author 2013. Oxford University Press and New York University School of Law. All rights reserved