Balancing Rights and Interests: Reconstructing the Asymmetry Thesis

Matthias Klatt

Oxford Journal of Legal Studies, 2021, vol. 41, issue 2, 321-347

Abstract: Dworkin, Schauer and others have argued that the last step of the proportionality test, ie balancing, is subject to a significant asymmetry. While we could balance interests against each other, we could not do so with rights, lest we destroy the unique normative status of rights. If this asymmetry exists, the applicability of balancing would be considerably limited. I analyse the asymmetry thesis and discuss its merits and weaknesses. I then demonstrate how we can accommodate the rationale behind the asymmetry thesis within the principles theory’s account of balancing. My article confirms that proportionality adjudication includes the balancing of rights and interests.

Keywords: balancing; human rights; principles theory; rights as trumps; proportionality; incommensurability (search for similar items in EconPapers)
Date: 2021
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