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Philosophical Foundations of Constitutional Law$
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David Dyzenhaus and Malcolm Thorburn

Print publication date: 2016

Print ISBN-13: 9780198754527

Published to Oxford Scholarship Online: April 2016

DOI: 10.1093/acprof:oso/9780198754527.001.0001

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(p.305) 15 Proportionality
Philosophical Foundations of Constitutional Law

Malcolm Thorburn

Oxford University Press

In this chapter, the author explores the practice of proportionality justification that is a central feature of constitutional right protection in the many jurisdictions that share the ‘post-war paradigm’ of constitutional rights protection. He suggests that this practice is part of a conception of constitutional rights as structural features of the constitutional order (the ‘Rechtsstaat’), rather than as external limits on state action imposed by the framers of a constitutional document. Constitutional rights, on this account, are regulative principles that serve to direct the activities of the state from the inside in order to ensure respect for the independence of persons. And so the question that the proportionality justification seeks to answer is whether the state’s justification for limiting a right is consistent with such respect.

Keywords:   constitutional rights, justification, proportionality, Rechtsstaat, post-war paradigm

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