Abstract
Human and constitutional rights theory in the last two decades focused initially on the principle of proportionality and subsequently on the ideas of the ‘culture of justification’ and the related ‘right to justification’. The view that emerged from these discussions is that proportionality is essentially a reasonableness test and that, correspondingly, human and constitutional rights are centrally concerned with reasonable justifications. This essay criticises the focus on reasonableness which neglects the core substantive promise of rights, namely their commitment to human dignity. It argues that the three dignitarian principles of intrinsic value, moral autonomy, and fundamental equality form the substantive core of rights, and it demonstrates that this is consistent with and creates a stronger moral foundation for contemporary rights adjudication and the culture of justification.
Highlights
The last two decades have witnessed a wide-ranging and global discussion of the theory and structure of human and constitutional rights
I will argue that the moral core of human and constitutional rights consists of a commitment not to reasonableness or public reason but to human dignity and its three sub-principles of intrinsic value, moral autonomy, and fundamental equality
The idea of equal concern reappeared as the principle of intrinsic value and the idea of equal respect became the principle of personal responsibility
Summary
The last two decades have witnessed a wide-ranging and global discussion of the theory and structure of human and constitutional rights. This debate initially focused on the principle of proportionality and subsequently on the related ideas of the ‘culture of justification’ and the ‘right to justification.’. Reasonableness has its place in the theory of rights, but it is more peripheral: human and constitutional rights insist that policies and acts be reasonably justifiable under the dignitarian structure which lies at their core. Möller dignitarian structure of rights provides a deeper and more attractive account of the culture of justification and the right to justification
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