18. Rescuing Human Rights from Proportionality-19. Free Speech as an Inverted Right and Democratic Persuasion推荐.pdf

18 Rescuing Human Rights from Proportionality Guglielmo Verdirame* Proportionality has become a staple of adjudication on fundamental rights in inter- national and domestic courts. It has been embraced by civil and common law judges alike, and described as the “principle of principles” and the “ultimate rule of law”.1 Unsurprisingly, legal scholars are turning their attention to it. Most studies of proportionality have been doctrinal but even these approaches can- not ignore the philosophical foundations of proportionality. George Letsas’s main claim is that proportionality, as developed by international and constitutional courts and “understood as denoting egalitarian rights against one’s government”,2 can be part of a moral theory of human rights. Proportionality—he argues—need not take us where many of us, him included, do not wish to be taken: utilitarianism. Although he acknowledges that the application of proportionality by courts has at times been utili- tarian, he thinks the blame does not lie with the idea of proportionality itself. It is true that not in all cases where proportionality was at least nominally applied a utilitarian approach followed, but is this enough to let proportionality off the hook? I begin where Letsas does—with a classification of the different uses of the term proportionality, although my taxonomy differs from Letsas’s in some important respects. I then proceed to address a question that should be at the heart of both explanatory and normative accounts of proportionality: what is the justification for proportionality in the different contexts in which it is applied? By looking at differ- ent uses of proportionality in a systematic fashion, I challenge the idea that there is an overarching canon of p