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Title: A critical analysis of the proportionality test in human rights adjudication
Author: Urbina Molfino, Francisco Javier
Awarding Body: University of Oxford
Current Institution: University of Oxford
Date of Award: 2013
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In this thesis I argue against the proportionality test in human rights adjudication, and provide a framework for understanding the proportionality debate. I identify two accounts of proportionality. One sees proportionality as a doctrinal tool aimed at maximising rights and public interests. The other sees proportionality as allowing for open- ended moral reasoning. I analyse the two accounts and identify their main deficiencies. I argue against both conceptions, and conclude that defenders of proportionality are in the following dilemma: either proportionality is insensitive to important moral considerations related to human rights and their limitations, and thus it is an unsuitable tool for human rights adjudication; or proportionality can accommodate the relevant moral considerations, but at the price of leaving the judge undirected, unaided by the law. I will further argue that lack of guidance is a deficiency in legal adjudication, which has important negative effects.
Supervisor: Finnis, John Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available
Keywords: Proportionality in law ; Human rights