Home > Research > Publications & Outputs > Proportionality, Stringency and Utility in the ...

Links

Text available via DOI:

View graph of relations

Proportionality, Stringency and Utility in the Jurisprudence of the European Court of Human Rights

Research output: Contribution to Journal/MagazineJournal articlepeer-review

Published
<mark>Journal publication date</mark>30/09/2023
<mark>Journal</mark>Human Rights Law Review
Issue number3
Volume23
Number of pages23
Publication StatusPublished
Early online date1/06/23
<mark>Original language</mark>English

Abstract

I argue that a form of indirect utilitarianism can provide a sufficiently plausible justification for three crucial elements of the ECtHR’s doctrine of proportionality to be taken seriously as an account of this doctrine. I show how indirect utilitarianism can account for the relation between moral rights and Convention rights, the resistance to trade-offs that is a particular property of Convention rights and the nature of the public interest against which rights must be balanced. I argue that the indirect utilitarian account provides a coherent interpretation of the Court’s jurisprudence concerning: (i) aims that express moralistic external preferences and their legitimacy; (ii) balancing and the doctrine of the ‘essence of rights’; and (iii) the Court’s reasoning in Dickson v UK. I conclude by exploring the further work needed to establish more firmly this account’s plausibility as an interpretation of the Court’s doctrine of proportionality as a whole.