Abstract

The fact that there is a constant conflict between individual rights and state or social interests has historically provoked the question of how to balance or harmonize such conflicting interests? On what basis shall the legislator or the judge decide in favor of this or that right in his legislation or judgement? Where shall we, for example, draw the line between the right to freedom of expression and the right to protect one’s honor and reputation? How could the legislator find the compromise between the state duty to protect fetus life and its obligation not to interfere with woman’s right to privacy and bodily autonomy? Throughout history, judges, theorists, and legal scholars has tried to answer such a question of balancing. The very basic question has resulted in multiple theories of rights and sparked controversies among law scholars and philosophers. Although such a debate has never been settled, it has resulted, within the practical contemporary legal jurisprudence, in two main judicial-made devices of balancing: Proportionality Analysis (PA), and the American Levels of Scrutiny. In the quest of finding the best balancing standard, judges and legal scholars has always contrasted such two methodologies. Each side contends that one of the two methodologies is better than the other in terms of objectivity, coherence, or predictability. The question in such debates has always been which of both methodologies could achieve the concord between the conflicting interests without encroachment of individual rights or threatening state interests. This paper is revisiting the debate asking the same question not to find a positive answer, but to develop a critique of both methodologies. It argues that although each methodology might have some advantages that lacks in the other, a major flaw of intuitiveness and irrationality is inherent in both of them. The paper concludes by drawing the attention towards the significance of acknowledging the irrationality thereof and the importance of developing what Cohen has called a “critical theory of values.”

School

School of Global Affairs and Public Policy

Department

Law Department

Degree Name

MA in International Human Rights Law

Graduation Date

Spring 6-2023

Submission Date

6-9-2023

First Advisor

Hani Sayed

Committee Member 1

Thomas Skouteris

Committee Member 2

Jason Beckett

Extent

81 p.

Document Type

Master's Thesis

Institutional Review Board (IRB) Approval

Not necessary for this item

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