Proportionality--a benefit to human rights? Remarks on the I{middle dot}CON controversy

Referring to the recent debate between Stavros Tsakyrakis and Madhav Khosla, this article highlights several important aspects of the proportionality test. It analyzes the relation between proportionality and the rights as trumps model, defending a weak trump model which combines the ideas of trumping and balancing. Furthermore, it demonstrates the proper place of moral considerations in proportionality analysis, and rejects the objection of incommensurability. Other arguments discussed in detail are the view that balancing boils down to mere mathematical calculation, and the problem of definitional generosity. In the last section, the authors examine the European Court of Human Rights’ decision in Otto-Preminger-Institut v. Austria. Overall, the article defends the view that proportionality is a rational and indispensable part of rights reasoning.