The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Law and Ethics of Human Rights 4 (2):142-175 (2010)
The institutionalization of a rights-based proportionality review shares a number of salient features and puzzles with the practice of contestation that the Socrates of the early Platonic dialogues became famous for. Understanding the point of Socratic contestation, and its role in a democratic polity, is also the key to understanding the point of proportionality based rights review. To begin with, when judges decide cases within the proportionality framework they do not primarily interpret authority. They assess reasons. Not surprisingly, they, like Socrates, have been prone to the charge that they offend the values and traditions of the community. The article discusses four types of pathologies that occasionally infect democratic decision-making that rights-based proportionality review is particularly suited to identify. But more basic and equally important is a second kind of justification: Proportionality-based judicial review institutionalizes a right to contest the acts of public authorities and demand a public reasons-based justification. Having a legal remedy that allows for the contestation of acts by public authorities before an impartial and independent court and demanding its justification in terms of public reason is as basic a commitment of liberal democracy as the right to vote. The real question is not whether judicial review is democratically legitimate, but how judicial institutions ought to be structured to best serve their democracy-enhancing and rights protecting purpose. If Socrates was right to insist that the practice of contestation he engaged in deserves the highest praise in a democratic polity, it is equally true that a well structured and appropriately embedded court engaged in rights based proportionality review deserves to be embraced as a vital element of liberal constitutional democracy
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
Alasdair Cochrane (2012). Evaluating 'Bioethical Approaches' to Human Rights. Ethical Theory and Moral Practice 15 (3):309 - 322.
Similar books and articles
Suzanne Uniacke (2011). Proportionality and Self-Defense. Law and Philosophy 30 (3):253-272.
L. Shapiro & E. Sober (2012). Against Proportionality. Analysis 72 (1):89-93.
A. Harel (2003). Rights-Based Judicial Review: A Democratic Justification. [REVIEW] Law and Philosophy 22 (s 3-4):247-276.
Moshe Cohen-Eliya & Iddo Porat, American Balancing and German Proportionality: The Historical Origins.
Charles-Maxime Panaccio (2011). In Defence of Two-Step Balancing and Proportionality in Rights Adjudication. Canadian Journal of Law and Jurisprudence 24 (1):109-128.
Brad Weslake (2013). Proportionality, Contrast and Explanation. Australasian Journal of Philosophy 91 (4):785-797.
Doris Schroeder (2012). Human Rights and Human Dignity. Ethical Theory and Moral Practice 15 (3):323-335.
Paul Muench (2007). Kierkegaard's Socratic Point of View. Kierkegaardiana 24:132-162.
Adam Etinson (2012). A Rights-Based Utopia? The Utopian 9.
Jon Mahoney (2001). Rights Without Dignity? Some Critical Reflections on Habermas's Procedural Model of Law and Democracy. Philosophy and Social Criticism 27 (3):21-40.
Richard Bellamy (2012). Rights as Democracy. Critical Review of International Social and Political Philosophy 15 (4):449-471.
Matthias Klatt (2012). The Constitutional Structure of Proportionality. Oxford University Press.
Gunnar Beck (2008). The Mythology of Human Rights. Ratio Juris 21 (3):312-347.
Charles-Maxime Panaccio (2010). Review of G.C.N. Webber, The Negotiable Constitution: On the Limitation of Rights (Cambridge University Press, 2009). [REVIEW] International Journal of Constitutional Law 8 (4):988-995.
Added to index2011-07-17
Total downloads48 ( #48,599 of 1,696,470 )
Recent downloads (6 months)4 ( #140,936 of 1,696,470 )
How can I increase my downloads?