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

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Proportionality, Stringency and Utility in the Jurisprudence of the European Court of Human Rights. / Letwin, Jeremy.
In: Human Rights Law Review, Vol. 23, No. 3, 30.09.2023.

Research output: Contribution to Journal/Magazine › Journal article › peer-review

Harvard

Letwin, J 2023, 'Proportionality, Stringency and Utility in the Jurisprudence of the European Court of Human Rights', Human Rights Law Review, vol. 23, no. 3. https://doi.org/10.1093/hrlr/ngad014

APA

Letwin, J. (2023). Proportionality, Stringency and Utility in the Jurisprudence of the European Court of Human Rights. Human Rights Law Review, 23(3). https://doi.org/10.1093/hrlr/ngad014

Vancouver

Letwin J. Proportionality, Stringency and Utility in the Jurisprudence of the European Court of Human Rights. Human Rights Law Review. 2023 Sept 30;23(3). Epub 2023 Jun 1. doi: 10.1093/hrlr/ngad014

Author

Letwin, Jeremy. / Proportionality, Stringency and Utility in the Jurisprudence of the European Court of Human Rights. In: Human Rights Law Review. 2023 ; Vol. 23, No. 3.

Bibtex

@article{2d5e1caa871c4d0da3c1c3193f372c93,
title = "Proportionality, Stringency and Utility in the Jurisprudence of the European Court of Human Rights",
abstract = "I argue that a form of indirect utilitarianism can provide a sufficiently plausible justification for three crucial elements of the ECtHR{\textquoteright}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{\textquoteright}s jurisprudence concerning: (i) aims that express moralistic external preferences and their legitimacy; (ii) balancing and the doctrine of the {\textquoteleft}essence of rights{\textquoteright}; and (iii) the Court{\textquoteright}s reasoning in Dickson v UK. I conclude by exploring the further work needed to establish more firmly this account{\textquoteright}s plausibility as an interpretation of the Court{\textquoteright}s doctrine of proportionality as a whole.",
author = "Jeremy Letwin",
year = "2023",
month = sep,
day = "30",
doi = "10.1093/hrlr/ngad014",
language = "English",
volume = "23",
journal = "Human Rights Law Review",
issn = "1461-7781",
publisher = "Oxford University Press",
number = "3",

}

RIS

TY - JOUR

T1 - Proportionality, Stringency and Utility in the Jurisprudence of the European Court of Human Rights

AU - Letwin, Jeremy

PY - 2023/9/30

Y1 - 2023/9/30

N2 - 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.

AB - 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.

U2 - 10.1093/hrlr/ngad014

DO - 10.1093/hrlr/ngad014

M3 - Journal article

VL - 23

JO - Human Rights Law Review

JF - Human Rights Law Review

SN - 1461-7781

IS - 3

ER -