"Proportionality: An Assault on Human Rights?" by Stavros Tsakyrakis

Communitarians balance the rights of individuals against the "rights" of the Community. This Jean Monnet working paper focuses on the balancing of American constitutional law.

Dear friends of the Jean Monnet Center,

We are pleased to announce the online publication of the ninth paper in the 2008 Jean Monnet Working Paper series. We include the abstract of this paper below:

Stavros Tsakyrakis, "Proportionality: An Assault on Human Rights?"
(JMWP no. 09/08)

Balancing is the main method used by a number of constitutional courts around the world to resolve conflicts of fundamentals rights. The European Court of Human Rights is routinely balancing human rights against each other and against conflicting public interests and has elevated proportionality to the status of a basic principle of interpretation of the European Convention on Human Rights. The paper examines the debate on balancing in the context of American constitutional law and the Convention, and discusses theories which claim that 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 suggests that courts should instead focus on the real moral issues underlying such disputes.

We invite you to access this Working Paper on the Jean Monnet Center website at www.jeanmonnetprogram.org.

BBC Profile: European Court of Human Rights
"http://news.bbc.co.uk/2/hi/europe/country_profiles/4789300.stm"

European Court of Human Rights homepage
http://www.echr.coe.int/echr/Homepage_EN

The European Court of Justice and the Protection of Fundamental Rights in the European Community: New Developments and Future Possibilities in Expanding Fundamental Rights Review to Member State Action, by Darcy S. Binder
http://www.jeanmonnetprogram.org/papers/95/9504ind.html