•Martin Abel (PhD candidate, Charles University, Faculty of Law)
GAUK No. 304521
Symmetrical
Proportionality Test
Brno, 24th November 2022

Claims
•
•A. There are at least two conceptions of rights (as principles).
•
•B. The proportionality test can effectuate the conception which respects deontological limits of
rights.
(the Third Way Thesis)

The Structural Theory
•R. Alexy, A Theory of Constitutional Rights (1985/2002)
1.Rights are principles.
2.Principles are norms that require that something be realized to the greatest extent possible
given the legal and factual possibilities.
(„the optimisation requirement”)
3.The nature of principles implies the principle of proportionality.
4.
•
•
Alexy’s followers:
There is only one structure of constitutional rights clauses worldwide
(„the Single Conception Thesis”)

Optimisation requirement
•„On any sensible interpretation, the greatest possible extent can only mean the correct extent. If
data protection and security come into conflict, and we know how to resolve the conflict correctly,
then this resolution will realize both principles to the greatest possible extent. This becomes
clear in the negative hypothesis. When we resolve the conflict between data protection and security
in any morally or legally wrong way, either or both will be realized to an extent less than what is
possible.”
•
•„Alexy’s theory would hold true only if making the moral argument always implied balancing the two
competing principles.“ (See Dworkin, Nozick, …)
- K. Möller, Balancing and the Structure of Constitutional Rights (2007)

The Global Model
•dominant narrative vs. global model
•moral reconstruction of the practice
•foundation of rights = right to personal autonomy
•against a ‘morality filter’ for evil activities
- K. Möller, The Global Model of Constitutional Rights (2012)

•The Single Conception Thesis
A. There are at least two conceptions of rights as principles (rather than one).


The French Declaration of the Rights of Man
and Citizen (1789)
•Article 4
•„Liberty consists in being able to do anything that does not harm others: thus, the exercise of
the natural rights of every man has no bounds other than those that ensure to the other members of
society the enjoyment of these same rights. These bounds may be determined only by Law.”
•
•Individual will vs. General will
•=> Rousseau’s footprint

ECHR (the same structure)
•Article 8
•„1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
•2. There shall be no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society in the interests of
national security, public safety or the economic wellbeing of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the protection of the rights and
freedoms of others.”

US Bill of Rights (1791)
•1950s: the liberal consensus
•1960s: rediscovery of classical republican politics (Bailyn, Wood, Pocock)
•1980s onward: Locke’s comeback: the republican synthesis brought to light important features, but
Locke was the most frequently cited author in the American political writings from 1760 to 1775.
… the philosophical origins

John Locke
•J. Locke, Second Treatise on Government (1691)
•„The state of nature has a law of nature to govern it, which obliges every one: and reason, which
is that law, teaches all mankind, who will but consult it, that being all equal and independent, no
one ought to harm another in his life, health, liberty, or possessions.” (sec. 6)
Close-up black and white photo of intricate building architecture

Limitations on rights in the law of nature
•Men naturally owe each other not only reciprocal obligations, but also obligations that constitute
rights:
•„As justice gives every man a title to the product of his honest industry, and the fair
acquisitions of his ancestors descended to him; so charity gives every man a title to so much out
of another’s plenty as will keep him from extreme want, where he has no means to subsist
otherwise.” (I:42)
•
•Likewise, the right to unlimited acquisition is ultimately directed toward maximalisation of „the
public good”, not individual preference.
•For Locke, like S. Pufendorf or J. Tyrrell, natural rights and obligations were justly distributed
in the state of nature.

Limitations on rights in the law of nature
•Men naturally owe each other not only reciprocal obligations, but also obligations that constitute
rights:
•„As justice gives every man a title to the product of his honest industry, and the fair
acquisitions of his ancestors descended to him; so charity gives every man a title to so much out
of another’s plenty as will keep him from extreme want, where he has no means to subsist
otherwise.” (I:42)
•„If the owner of a large manor bequests in his last will the whole estate to his first-born,
leaving only a tiny annual rent to his wife and daughters, the bequest is void by natural law.”
(Kendrick 2011)
•
•Likewise, the right to unlimited acquisition is ultimately directed toward maximalisation of „the
public good”, not individual preference.
•For Locke, like S. Pufendorf or J. Tyrrell, natural rights and obligations were justly distributed
in the state of nature.

•For the founding generation, rights were anchored in the moral order and limited by their communal
purpose.
•This is consistent with the communitarian ethic typical for the colonies and based on shared
religious beliefs.
•The conception survived the 19th century.
US Bill of Rights: a different conception

•1900s: US courts balanced rights against public policy objectives.
•But the deontological limits remained
•First Amendment (free speech clause): unprotected speech
•Fifth Amendment (due process clause): limited by
the police power (West Coast Hotel)
•Rights need not be realized to the greatest possible extent, but to the extent that is just.
US Bill of Rights: a different conception

•In continental Europe, the I-conception unleashed the individual from moral bonds in the law of
nature (teleological limits), except for those recognised by law as the expression of general will.
•In USA, the We-conception did not release the right-holder from moral bonds in the law of nature
and the government serves both to protect and police the boundaries of natural rights.
•Both can be worked out as rules and/or principles.
Two conceptions of rights

Compatibility
of Alexy’s and Moller’s theories with the two conceptions


•Möller’s compatible only with the I-conception
•the first-person perspective
•admits that his model does not fit the US constitutionalism
•
•Alexy - neutral perspective?
Conceptions of rights in Alexy and Möller

•The I-conception conceives of rights as resources of abstracted right-holders that ought to be
maximised.
•This is exactly what the structural theory’s optimisation is about.
It means to make the best or most effective use of resources.
•Optimisation vs. moral requirement: morally right solution must be found
•„[J]ustice is not about aggregating or maximizing preferences or interests effectively or
efficiently, but about distribution, i.e., about who is entitled to what.” (Urbina 2012, see also
Tsakyrakis 2009, Webber 2013, Kyritsis 2014, Letsas 2018, Zanghellini 2019)
Conceptions of rights in Alexy and Möller

•For Locke, it makes no sense to think of two abstracted individuals as right-holders whose
interests the law serves
to protect, no matter the moral obligations they have toward each other.
•The objections against the optimisation requirement are an attack on the I-conception, because the
proportionality test serves first and foremost for evaluating the constitutionality of legal
restrictions of preference satisfaction, rather than for finding what justice demands.
Optimisation ~ I-conception

•Proportionality = I-conception?
B. The proportionality test can be construed from the conception which respects deontological
limits of rights.

•Asymmetrical Proportionality Test:
•
•Stage I (Interference): Does the policy infringe upon one of the rights?


Stage II (Justification): Was the interference in accordance with law?
Did it pursue a legitimate aim? Was it proportionate?
Symmetrical Proportionality Test:
Stage I (Interference): Does the policy infringe upon one of the rights?
Was the right exercised for a legitimate reason?

1.The Single Conception Thesis is wrong. There are at least two conceptions of rights. Neither
conception necessarily follows from the nature of principles. One could be morally superior.
2.Abandoning the I-conception does not mean abandoning the model of principles and proportionality.
The symmetrical proportionality test gives effect to the We-conception of rights.
3.Question remains what the illegitimate/excluded reasons should be?
Conclusion

•R. Alexy, A Theory of Constitutional Law (1985/2003)
•A. Barak, Proportionality (2012)
•S. Banner, The Decline of Natural Law. How American Lawyers Once Used Natural Law and Why They
Stopped (2020)
•R. Boyd, The Calvinist Origins of Lockean Political Economy (2002)
•K. Douzinas, The Radical Philosophy of Rights (2019)
•P. J. Galie, B. Kirschner and C. Bopst, Bills of Rights Before the Bill of Rights: Early State
Constitutions and the American Tradition of Rights, 1776-1790 (2020)
•S. Gregg, Metaphysics and modernity: Natural law and natural rights in Gershom Carmichael and
Francis Hutcheson (2009)
•R. H. Helmolz, Natural Law in Court A History of Legal Theory in Practice (2015)
•J. Hutson, The Emergence of the Modern Concept of a Right in America: The Contribution of Michel
Villey (1994)
•V. Jackson, Constitutional Law in an Age of Proportionality (2015)
•L. Kendrick, The Lockean Rights of Bequest and Inheritance (2011)
•D. Kyritsis, Whatever Works: Proportionality as a Constitutional Doctrine (2014)
•M. Kumm, Political Liberalism and the Structures of Rights, in: George Pavlakos (ed.), Law, Rights
and Discourse (2007)
•G. Letsas, Proportionality as Fittingness (2018)
•D. H. Mayer, The English Radical Whig Origins of American Constitutionalism (1992)
•A. J. Menéndez, Some Elements of a Theory of European Fundamental Rights, in Menéndez & Eriksen,
Arguing Fundamental Rights, 2006)
•K. Möller, Balancing and the Structure of Constitutional Rights (2007)
•K. Möller, The Global Model of Constitutional Rights (2012)
•S. Moyn, The Last Utopia (2011)
•W. J. Novak, The Peoples Welfare Law and Regulation in Nineteenth-Century America (1996)
•G. Pavlakos, Constitutional Rights, Balancing and the Structure of Autonomy (2011)
•C. Pierson, Just Property: A History in the Latin West (2013)
•R. H. Pildes, Avoiding Balancing (1994)
•F. Schauer, A Comment on the Structure of Rights (1993)
•L. Strauss, Natural Right and History (1953)
•F. Urbina, A Critique of Proportionality (2009)
•A. Vermeule, Common Good Constitutionalism (2022)
•L. Ward, The Politics of Liberty in England and Revolutionary America (2004)
•G. Webber, On the Loss of Rights (2013)
•A. Zanghellini, Why rights are not optimisation requirements (2019)
•M. Zuckert, Natural Rights and the New Republicanism (1994)
Bibliography

Objections



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