Legitimate Aims and Public Reasons: Towards a Moral Renaissance of Proportionality Review

Courts and scholars alike tend to treat it as a largely formal or perfunctory inquiry, with substantive evaluation deferred to the later stages of analysis. The nature, as well as the necessity, propriety or worthwhileness of the pursuance of social goods and collective interests is rarely articulated or evaluated in terms of reasoned justification. A comparative survey of the case law across jurisdictions, at both the national and supranational levels, bears out this diagnosis.

Yet if legitimacy review is to serve any meaningful justificatory function, it ought to entail rigorous evaluation of collective goods and interests invoked by the state before they can be relied upon as public reasons for the limitation of rights and freedoms. This neglect, in both practice and theory, deprives us of adequate tools for determining (il)legitimacy of state objectives, not to mention tools that are consistent with an attractive conception of rights that liberal democracies profess to uphold.

As a result, the legitimate aims stage risks allowing trivial, unnecessary, and – more worryingly – morally questionable ends to justify interferences with human rights, undermining the distinctiveness and normative significance of fundamental rights and freedoms as well as their full and unencumbered protection and exercise. If proportionality review is ultimately concerned with determining whether an interference with a right can be justified, legitimacy review must be equipped to engage more meaningfully with the moral questions raised by the aims pursued by the state.

It is against this background that the conference will bring together esteemed judges, leading scholars in international human rights law, constitutional law, and moral and legal philosophy, and early career researchers worldwide to revitalize one of the most consequential yet undertheorized dimensions of proportionality analysis. Differing approaches and perspectives from across these fields, although of immense potential to contribute to such an endeavor, have too often developed in relative isolation from one another, with their capacity to inform and enrich one another consequently remaining underexploited. To this end, the conference aims to bring these strands of conversation into dialogue across four themes: Legitimacy Review in Comparative Perspective; Roadblocks to Rigorous Legitimacy Review and Their Implications; Proportionality Review: Beyond Negative Use Towards Positive Instruction; and Institutional Considerations and Constraints and the Future of Legitimacy Review.

Together, these themes seek to restore rigorous legitimacy review, one connected to its moral roots, to its proper place at the heart of proportionality review, whilst situating it within broader comparative and institutional realities, and ultimately equipping it to grapple meaningfully with the reasons that can legitimately justify the pursuit of particular state aims, particularly where doing so entails limitations on human rights and fundamental freedoms.

As seating is limited, interested individuals are strongly encouraged to register for this event by contacting Martha Basazienw Kassa (m.kassa@csl.mpg.de). 

A cooperation of

In collaboration with