Proportionality and Compromises
When individual rights, especially constitutional rights, compete with other rights or with a public good, judges and politicians involved in the legislative process or jurisdictional process are expected to balance their decision in such a way that the gain from achieving the goal mitigates the cos...
| Published in: | Journal of moral philosophy |
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| Main Author: | |
| Format: | Electronic Article |
| Language: | English |
| Check availability: | HBZ Gateway |
| Journals Online & Print: | Drawer...
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| Fernleihe: | Fernleihe für die Fachinformationsdienste |
| Published: |
Brill
2020
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| In: |
Journal of moral philosophy
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| Further subjects: | B
Proportionality
B compromise B Ronald Dworkin |
| Online Access: |
Volltext (lizenzpflichtig) Volltext (lizenzpflichtig) |
| Summary: | When individual rights, especially constitutional rights, compete with other rights or with a public good, judges and politicians involved in the legislative process or jurisdictional process are expected to balance their decision in such a way that the gain from achieving the goal mitigates the costs of the resulting loss for the parties. Jurists speak of the doctrine of proportionality in connection with this process of balancing. In the proportionality calculus, judges have to evaluate whether the impact on individual rights outweighs the public purpose pursued through a state’s legal activity. I will argue that the procedure of proportionality is similar to the procedure of reaching a compromise. More precisely, I will defend that compromise is a special case of the principle of proportionality, for it applies when claims cannot be balanced or in the absence of an overarching principle on which all the parties agree. With this, I aim to show the connection between the principle of proportionality and compromises without conflating these two concepts, and to offer new perspectives on the discussion of proportionality as it is used in the legal context. |
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| ISSN: | 1745-5243 |
| Contains: | Enthalten in: Journal of moral philosophy
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| Persistent identifiers: | DOI: 10.1163/17455243-20182843 |