Disproportionate Individualism

 

  1. A tale of two societies

 Since at least the publication of Alexis de Tocqueville’s famous work Democracy in America, common wisdom has it that the USA is par excellence an individualistic society.[1] The judiciary has had more than a fair share in shaping and entrenching this belief, especially during the Lochner era (1905–1937), when it all but embraced laissez-faire economics,[2] thus giving effect to a strongly individualistic moral philosophy, which praised economic liberty and the right to property. Its main tenets can be described as follows: Liberty’s foundation lies with natural law and consists mainly in the freedom of the individual to acquire property. Accordingly, property rights are elevated to the quintessence of individual freedom. The jurisprudence of the courts mirrored the priority of property rights: While freedom in other areas, such as freedom of speech, association, and personal life, was systematically curtailed in the Lochner era without much resistance from the courts, limitations of property rights were automatically deemed problematic.

We can trace the origin of this philosophy back to John Locke. Locke insists that ‘the reason that men enter into society is the preservation of their property’.[3] It is true that he also uses the term property in a broad sense, meant to include the life and liberty of individuals. Thus, within ‘the general Name, Property’, he includes the ‘Lives, Liberties and Estates’ of persons.[4] Nevertheless, it was around the narrow sense of possession that individualism has developed. Whilst Locke’s individualism was far from extreme insofar as it acknowledged that the ‘perfect freedom’ of individuals in the state of nature was within the limits of natural law,[5] and although he explicitly allows for the regulation of property,[6] there is no doubt that for him political society has a limited aim, namely that of guaranteeing the freedom individuals enjoy in the state of nature.

Contrary to the US, there has not flourished in Europe an individualistic tradition championing property as the pinnacle of human rights[7]. Notwithstanding the fact that the French Declaration of the Rights of Man deems property to be an ‘inviolable and sacred right’,[8] the political mainstream never seriously questioned society’s right to regulate and restrict private property. Quite the opposite, to the extent that most modern European constitutions enshrine welfare rights (at least for citizens), restrictions of property have typically been understood to have a distributive task.

However, individualism comes in many different forms. In this chapter I want to argue that recent years have seen the rise in Europe of a type of individualism which, following a conception of freedom that owes more to Thomas Hobbes, ends up being more extreme than Locke’s. Needless to say, it goes well beyond the scope of this chapter to map its presence in all fields of social life. So what I propose to do instead is indicate its pervasiveness in human rights adjudication. Just like the American courts of the Lochner era, human rights courts in contemporary Europe can be seen as the bellwether of the intellectual shift that is under way. Indeed, the recent European adjudicative practice carves out a notion of individualism that finds itself at odds with a sound theory of justice.

The touchstone of this peculiarly European brand of adjudicative individualism is the principle of proportionality. Proportionality itself is of course not narrowly European. It has become the word of the day in human rights law. It is the prevailing method of human rights adjudication all over the world and has come to shape a whole theory of human rights.[9] That doesn’t make it correct, though. In fact, as I am going to argue, proportionality offends our most elementary convictions about human rights. Its failure has to do precisely with the deeply flawed individualism that underlies its understanding of freedom. I start by elaborating this understanding of freedom, which I shall call total freedom, and bringing out its individualistic bias. I argue that total freedom has a striking similarity with the one that Hobbes attributes to human beings in the state of nature. From the state of nature, proportionality lets Hobbes into the city, so to speak. Furthermore, I suggest that due to its individualism, total freedom assumes and reinforces a skewed perception of society and social justice. In order to bring the defects of total freedom into sharper relief, I contrast it to a different conception that draws primarily on the philosophy of Ronald Dworkin. I argue that the latter has significant advantages and should be preferred.

This chapter does not engage in a close examination of how proportionality is used in the case-law[10]. Hence it takes it as a given that proportionality is the guiding principle of European human rights adjudication. I hope that this assumption is not too hard to swallow. To be convinced of its soundness, one needs only take a cursory look at the jurisprudence of the most famous European courts adjudicating human rights such as the European Court of Human Rights, the German Constitutional Court and the UK Supreme Court[11]. Equally, this chapter does not take up the broader project of explaining why individualism has taken hold in Europe, what political and intellectual developments have made it possible. All it does is to suggest that in proportionality individualism has found the perfect partner in crime.

  1. A prima facie right to everything?

Proportionality is a new label for an old idea. The old idea is balancing. In the 50’s and 60’s, balancing was routinely employed by American judges in the context of First Amendment law. Its pros and cons were debated by absolutists and balancers. Absolutists claimed that the First Amendment contained a set of narrowly defined categorical rules. By contrast, for balancing aficionados like Justice Frankfurter, its necessity derived from the fact that human rights are not absolute, so the only way to determine their limits is to balance the value of the right against the value of competing individual and public interests. Frankfurter’s approach was criticized for its lack of clarity on a series of issues: what is to be weighed (interests, principles, rights, considerations); how it is weighed (with what metric); who should do the balancing (judges or legislators). Moreover, balancing seemed to leave obscure a more basic issue, which concerns the meaning and import of the relevant constitutional provisions. Even if rights in general are subject to balancing, this does not necessarily mean that our constitutional rights must be balanced. Maybe those who enacted those provisions had already made a balancing judgment about, say, the priority of freedom of speech over other public goals. On the basis of that judgment, they may have intended to entrench certain determinate legal standards that conferred something concrete to the right holder. If that was the judgment that the provisions stood for, shouldn’t judges be preempted from second-guessing it?

To most of these questions proponents of proportionality rehash old answers. They stress the indeterminacy of human rights norms, which, as Alexy puts it, “command […] that something must be realized to the highest degree that is actually and legally possible”[12] and come to the conclusion that balancing is inherent in the concept of human rights. This is no different from the claim that, since human rights are not absolute, their content can only be determined through balancing. To the question what shall be placed on the scales, the answer is also much the same: every conceivable individual or public interest. Finally, since proportionality started life as a method of adjudication, it is taken for granted that judges should do the balancing.

The only fresh proposal concerns the specific method of balancing. At this point the concept of proportionality is introduced. Proportionality is a mathematical concept that refers to the relation of two variables to a stable constant. Its use in the context of rights adjudication expresses the idea that some kind of equilibrium is disturbed whenever someone’s freedom is restricted in a way that is unsuitable, unnecessary or excessive compared to the benefit that the restriction achieves.

By using the concepts of balance, scale, weight (all concepts coming from the natural sciences) proportionality enjoins us to investigate whether something is adequate, intensive or far-reaching instead of whether it is right or wrong. What are we to make of this shift of focus? Some theorists seem to think that conflicts of values can actually be reduced to questions of intensity or degree and, more importantly, that intensity and degree can be measured by a common metric (something like a natural force) and that this process will reveal the solution of the conflict. Thus, they argue, proportionality is neutral, objective and rational, and allows us to bypass moral reasoning.[13]

More plausibly, others use the natural-science language of balance, scale and weight metaphorically. The value of proportionality, they contend, is that it offers a structure for legal and moral argumentation[14]. But even on the latter view, proportionality is a mistake. That is because the structure itself is problematic and distorts our reasoning about rights. It is problematic inasmuch as it indiscriminately takes into account any human interest, even those that are worthless or ill-founded. It distorts moral reasoning inasmuch as it requires that we examine to what extent pursuing a competing interest would result in a serious, intermediate or light interference with the right in question. But by placing all interests on the scales and by assigning each of those interests some weight we have already skewed the outcome of the balancing process. Take Dworkin’s example of an interest in killing those who criticize me. Are we prepared to assign weight to outrageous interests such as this one in the first place? Once we start going down this road, it makes little difference to assign such interests only a slight weight. The damage will already have been done. So for instance, a small fine for expressing a controversial opinion may start to appear like a minor interference with the right to free speech. Conversely, it may seem to us relevant that the indignation of those who disagree with that opinion is grave. By framing the balance in terms of interests and relative weights we are distracted from proper moral reasoning.[15]

What has gone wrong? I want to claim that at the heart of proportionality’s woes is its philosophical starting point, which we can label Hobbes in the city. Proponents of proportionality introduce within organised society an idea that Hobbes had reserved for the state of nature, namely that ‘every man has a right to everything even to one another’s body’.[16] I shall refer to the contemporary variant of this right as the right to total freedom. However, there are two important differences between Hobbes in the state of nature and in the city. Firstly, contemporary proponents of proportionality take the right to total freedom to be only prima facie. Secondly, unlike Hobbes who did not believe that freedom in the state of nature was of any particular value and was perfectly willing to sacrifice it for the sake of security within a political order, proponents of proportionality maintain that total freedom is of such value that it ought to be optimized along with the freedom of other individuals and other values. It follows from this that any interference with what someone wishes to do is a potential abridgment of his rights or at least the starting point of a human rights inquiry. Activities such as ‘falconry’,[17] or feeding pigeons on public squares,[18] or spitting on the public sidewalk[19] raise human rights issues just as torture or censorship does. From the perspective of this conception, then, there are no specific human rights; rather individuals have a general right to this kind of total freedom, from which we can derive its more specific emanations after balancing it against competing interests and values in order to determine in each case whether it will prevail or not. In this sense, it is not far off the mark to say that a prima facie right to everything is equivalent to a prima facie right to nothing in particular. The flipside is that this conception erodes the distinctiveness of human rights as opposed to other human interests.

Is it possible to arrive at a concept of society (let alone a fair society) with Hobbes as our starting point? That is, starting with the notion that society is an aggregate of individuals who by nature have ‘a right to every thing, even to one another’s body’ and then trying to figure out how to come together in order to form a commonwealth, Hobbes’ own solution was drastic: A commonwealth is possible only if individuals forfeit not just the right to everything but also all their rights. This was considered his weak point because the absolutism he was proposing was not only unattractive, but also in essence incompatible with the individualism he had as starting point. What is the use of having a right if it only serves to license its forfeiture?

Hobbes’ absolutism never became popular. Still his scheme seems to persist in public discourse, albeit with one basic adjustment. If a peaceful social organization is possible without forfeiting every right, then such forfeiture is unnecessary. Individuals need only forfeit those rights, the exercise of which is incompatible with peaceful political coexistence; but they may hold on to the rest of them. The scheme becomes clearer if it is recast in terms of freedom. Individuals have an immense amount of freedom; they enjoy total freedom. In a society they are enjoined to sacrifice not their total freedom but just the amount that is necessary to secure the mutual enjoyment of the remaining portion of their freedom under the auspices of a commonwealth. The modified Hobbesian scheme is the basis of what could be called an ‘individualistic liberalism’. Its motto is the following: ‘the less freedom we give away, the more just a society is’. On this view, the minimal state becomes not merely an efficient social organization, but something valuable, a realization of justice.[20]

By adopting the Hobbesian idea that individuals have a prima facie right to total freedom proportionality subscribes to an individualistic liberalism. But this kind of individualism is a methodologically flawed abstraction which makes social justice incomprehensible and, just as was the case with Hobbes, ends up granting no rights to individuals.  It is methodologically flawed since it ignores the fact, so well captured by Aristotle, that man is a social being and cannot be conceived outside society. It is society that comes first, not the individual. This means that practices of sharing and accomplishing things with others are prior to the individual pursuing his self-interest. Consequently, we cannot start from the notion of total freedom, since social beings constitutively lack it and society is not the right place to search for it.

Individualistic liberalism is not the only form of liberalism around. I propose we start instead from thinking how we should regulate these practices of sharing and accomplishing things with others, in such a way that they are just. Our answers will vary from one social context to the other. We should expect that individual rights will appear further downstream. But, again, the content of those rights will be determined by a notion of fairness in different social contexts. Take intimate relationships. Couples, we often say, are unions that are supposed to strive for the fullest integration towards the achievement of many shared goals. At the same time, though, we insist that persons remain distinct and independent even in intimate relationships. From this we draw more concrete conclusions. We contend, for instance, that one’s private correspondence does not belong to the other, or that it is inappropriate for one to spy on the other, even if it is for the purpose of knowing them better.

Political justice follows the same pattern. Theories of justice are theories about our legitimate demands against our fellow-citizens. These demands cannot be properly articulated unless we conceive everyone as a separate person whose life is of special importance. Thus, we come to a notion of individuality that derives from and relates to a notion of fair sociability. Basic liberties that grant individuals rights are a cardinal element of a fair society; they are indispensable social arrangements that enable all persons to conduct the plan of life that they deem valuable. The maximization of liberty is not valuable in itself, but only insofar as it is supported by this notion of fair sociability. We could call such an approach that reconciles the affirmation of individual rights with the primacy of social life liberal sociability. The thrust of liberal sociability, then, is that individual rights are derived from a conception of a just society (one in which everyone has the status of free and equal), rather than from a doctrine that gives methodological priority to the individual and his total freedom. Under liberal sociability, justice and solidarity find their proper place. We care for justice and solidarity because we are the sorts of being that participate in collective endeavours, which constitutively constrain our liberty and implicate our interests and the interests of others. By contrast, in the individualistic view justice gets a bad name and solidarity is all but eliminated.

There is no space here to make a positive case for this conception of liberal sociability, as I call it. My purpose in introducing it was to bring out that individualistic liberalism is a highly contentious doctrine. In fact, as I go on to argue in the following section, it propounds a very problematic understanding of human rights.

  1. 3.     The liberty of human rights

Does individualistic liberalism with its commitment to total freedom help us grasp the concept of human rights? Take for example traffic regulations. Dworkin uses the example of prohibiting driving uptown on Lexington Avenue.[21] Is it helpful to start with a prima facie freedom to drive however someone wishes including uptown and then to examine whether the specific prohibition infringes someone’s right? The proponents of proportionality will answer “yes”. They will balance the loss of freedom of driving uptown with the convenience or order in traffic produced by the existence of the traffic rule, and they will probably find that these values outweigh the loss of freedom. Even so, they will maintain that a loss of freedom has occurred, albeit one that was easily exchangeable for the purpose of optimizing freedom overall. Suppose now that new research has indicated that the restriction was misguided, and convenience and order in traffic would be better served by the opposite rule, one prohibiting driving downtown. Are we prepared to say that prohibiting driving uptown was a violation that Human Rights Watch should denounce?

What makes us think that a loss of freedom to drive as we wish, even if it is proven to be grounded on mistaken assumptions, is not particularly grave? Why can we live with it? I guess the answer is that nobody feels offended by the prohibition; nobody feels that the prohibition denies his dignity as a moral agent.[22] On the contrary, someone will feel deeply offended if he is not free to worship the God he wishes or to express his political ideas. The conclusion is that not every curtailment of freedom raises a human rights issue but only the abridgment of certain basic liberties.

Which are these basic liberties? How are we going to distinguish which liberties are basic (or fundamental or preferred) for a society to be just and which are not? Rawls suggests two ways: a) we can use the list of the various bills of rights and declarations of the rights of man;[23] b) we can ‘consider which liberties are essential social conditions for the adequate development and full exercise of the […] moral personality over a complete life.’[24]

Ronald Dworkin goes one step further in specifying the basic liberties and thus buttressing the contrast between the idea of total freedom and the alternative conception suggested above. He understands total freedom to be the power to act as we wish unimpeded by others or by a political community. He maintains that we do not actually ascribe value to such freedom. We do not think, he says, that there is any moral loss, when the state forbids me to kill my critics. ‘If nothing wrong has taken place when I am prevented from killing my critics, then we have no reason for adopting a conception of liberty that describes the event as one in which liberty has been sacrificed’.[25]

The liberty we value is, according to Dworkin, an interpretative concept that is not and should not be coextensive to total freedom.  The liberty we should be committed to is “the area of [a person’s] freedom that a political community cannot take away without injuring him in a special way: compromising his dignity by denying him equal concern or an essential feature of responsibility for his own life’.[26] This is not another formulation of the list of basic liberties. True, insofar as the traditional basic liberties (freedom of speech, freedom of religion etc) guarantee the “essential social conditions for the adequate development and full exercise of the […] moral personality over a complete life” (Rawls), these are also included in the Dworkinian formula. Still there are substantial differences.

First, Dworkin’s formula seems broader since any interference that denies equal concern and respect qualifies as giving rise to a claim of human right.[27] Second, and more important, it does not allow that “fundamental or preferred liberties” be determined by collective views. It is not that from the immense amount of freedom we pick some liberties because they seem to us more valuable than others. Doing so would be like imposing on others a certain view about what is a good and valuable way of life. But this would contradict our stated aim, because it would fail to respect everyone’s personal responsibility to make the best of their own lives.

But even more fundamentally, Dworkin’s formula provides a robust philosophical basis for the kind of liberty we should value. For Dworkin, it is not the role of political society to satisfy our preferences, simply because they are manifestations of our freedom. In fact, political society may and does use its coercive force for all sorts of purposes and restricts freedom in all sorts of ways. There is nothing prima facie problematic about that. What a political society may not do is deny a liberty, when being denied that liberty would compromise our dignity. In turn, an act is an assault to dignity when it denies someone ‘equal respect and concern or an essential feature of responsibility for his own life’[28]. Thus, what we really value is dignity. Dignity is the central concept for human rights and all the more specific ‘valued liberties’ are connected with it. So when, for example, we come to consider that on matters of intimacy we should be free from governmental interference, our view expresses rather the conclusion of an interpretation of the concept of dignity. One of the characteristic ways in which a political society may fail in its duty to act consistently with dignity is when it acts on discriminatory or moralistic grounds. The first type of ground compromises equal standing, whereas the latter vitiates the principle of personal responsibility for one’s own life.

These observations help vindicate the view that the characteristic operation of rights is as trump cards.[29] It is not because rights are infinitely more important than the considerations they trump, but because a state that acted on those considerations would thereby assault dignity, and the recognition of the right serves to act as a bulwark to that assault. Consider moralistic and paternalistic laws. These are based on impermissible justifications because they do not respect the ethical responsibility of individuals and thus injure their dignity. So, for example, if the justification for prohibiting bird-feeding in the park is that this kind of activity is worthless, a waste of time, this would be an insult to the ethical responsibility of the individuals. The state cannot restrict my choices on the basis that they are not worthy, because to do so would be to make a judgment that the principle of personal responsibility commands that each one of us make on our own. But the state can restrict my choices when its reason for doing so does not assume any ethical evaluation. This means that there is no general or prima facie right to feed the birds, to engage in falconry or “to paint my Georgian house purple”. [30] A state typically prohibits or at any rate regulates those activities on the basis of considerations that do not compromise dignity (such as environmental protection, public health and urban planning). However, the very same activities raise human right issues whenever their justification is based on ethical evaluation. Again what counts is not freedom as such (the same activity can be restricted without injury) but the protection of ethical responsibility.

Now, someone could say that feeding the birds or falconry is the basic plan of his life; it is not just a preference, like drinking soda instead of orange juice. Does the state show lack of respect for someone’s ethical responsibility when, although it abstains from any ethical evaluation, it forbids or makes more difficult on other grounds the pursuit of a central element of my conception of the good life? What is the use of not allowing the state to make ethical judgments about my conception of the good life if it can forbid it altogether for some other reason? This is a question that again shifts our focus from dignity to total freedom. Our claim towards society is not freedom but respect for our status as moral agents. So, if for example we had the freedom to feed the birds on the ground that pointless activities should be given a space, this would certainly be an insult to ethical responsibility, although freedom would be intact.

If we take for granted that every society regulates most of the activities of its members, it would be a disaster to consider every individual preference as an ethical choice that raises a claim of right. We will end up ‘moralizing’ every measure and unavoidably the majority will have to take stance on every ethical choice. The deliberation would be something as follows: Is your life’s plan feeding the birds? Then, it gives you a prima facie right, but so does our life’s plan, which is to play football. For us, playing football is more valuable and, since we are many, our choice must have the upper hand. Put differently, if society takes every individual preference as an ethical choice – and thus worthy of protection as a prima facie right – I doubt that the result will be more freedom or just a lot of frustration. Everybody, sometime, will be deeply offended because their choices will be opposed by others on the basis of their own ethical valuations. The right to nothing in particular will then morph into a right to nothing tout court.

It is true that the alternative strategy to forbid regulations that are based on ethical justifications does not guarantee or facilitate any plan of life based on any preference. But the real claim we have from society is not to provide everything we need for the success of our plan, even prima facie. Our, claim is not, to put it in Dworkin’s metaphor, to have all possible colors in our palette, but to be able to design our life on the basis of our own value judgments with the colors that are available to all.[31]

  1. Human rights and the courts

 

Now, if we accept that only a few basic liberties are ‘essential social conditions’ of moral personality in Rawls’ sense or are needed to protect against violations of dignity in Dworkin’s sense, it is less problematic to subscribe to a constitutional arrangement whereby courts are called to safeguard them from eventual abridgment by entrenching them against the legislative will. In other words, this idea fits well with our traditional ideas of representative democracy and judicial review. By contrast, the concept of total freedom that is implicit in the principle of proportionality renders any interference with a person’s total freedom a potential human rights violation or at least the starting point for a human rights inquiry. That definitely seems to reflect the position of the German Constitutional Court, which, as Mattias Kumm notes, ‘regards any liberty interest whatsoever as enjoying prima facie protection as a right’.[32] In other words, as Mattias Kumm acknowledges, ‘the recognition of a general right to liberty and a general right to equality means practically all legislation can in principle be challenged on human rights grounds, leading to an assessment of its justification in terms of public reason as prescribed by the proportionality tests’.[33]

If in principle every piece of legislation gives rise to a human rights issue, then the judiciary must decide on virtually any question of public policy, from fines for parking violations to the fluctuation of interest rates. Furthermore, in doing so, it is bound to employ a standard that is much more intrusive than mere rational connection. As a result, the boundary between review and appeal is automatically blurred,  as is, along with it, the basis of the courts’ legitimacy. Legitimacy concerns are intensified when it is supranational courts such as the European Court of Human Rights that are tasked to protect human rights. Having to rely on an expansive understanding of the scope of human rights, they end up becoming the ultimate arbiter of the legality of every piece of national legislation.[34]

Independently of whether such a development would be desirable or not, there is no doubt that it dramatically alters the way we conceive of judicial review, the power of political majorities, the very concept of representative democracy and, ultimately, the role of supranational human rights courts. In reality, this shift would surreptitiously make proportionality not merely the ‘ultimate rule of law’[35] but the over-arching method for the moral assessment of any form of human conduct.

Conclusion

 

To conclude, I have tried to draw a distinction between two understandings of human rights. On the understanding I favour, limits to ‘total freedom’ in themselves do not constitute an ‘invasion’ of valued liberties. Rather, we have to determine which restrictions of freedom count as injuries to the dignity and autonomy of the individuals. On the other hand, for a proponent of total freedom, freedom is understood in quantitative terms; the more of it we have, the better. This account, I have argued, is ill-equipped to make distinctions between kinds of invasion of freedom depending on their justification, and on this basis to exclude some justifications as incompatible with the very idea of rights such as freedom of expression, religion and privacy. In fact, insofar as the proportionality test is meant to be neutral and take at face value a wide range of interests, it lacks the resources to exclude any consideration whatsoever. Thus, it exposes all our rights to a very dangerous vulnerability. More fundamentally, it seems to presuppose a perverse conception of the relationship between the individual and society, one that builds up from a radical individualism. But this starting point is deeply misguided. For social beings like us, total freedom is not a value. Neither do we want our courts to enforce it. An organized society routinely constrains our freedom; it imposes limits on the ways we can use our shared social, natural and aesthetic environment. Being members of such a society, we should be more concerned that we can live our unavoidably constrained lives in dignity.

Some political ideas have the tendency to recur with slight adjustments in a variety of contexts. Individualism is one of them. Europe prides itself for never succumbing to the extreme individualism that underpinned laissez-faire economic arrangements. But it may still be susceptible to individualism, if it allows the ascendancy of a philosophy, whose hallmark is the prima facie right to everything. If it does, it will expose itself to a much graver risk than those associated with a free market: the risk of having the concepts of justice and solidarity seriously undermined.


[1] Tocqueville’s description of individuals’ mentality in a democracy is that ‘[t]hey owe nothing to any man, they expect nothing from any man; they acquire the habit of always considering themselves as standing alone, and they are apt to imagine that their whole destiny is in their hands’.  Such a democracy ‘throws [man] back forever upon himself alone and threatens in the end to confine him entirely within the solitude of his own heart’. Alexis de Tocqueville, Democracy in America, vol. 2 (Alfred A. Knopf, 1945) 99.

[2] Recall Oliver Wendell Holmes’s famous phrase: “The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics. […] [A] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizens to the State or laissez faire.” Lochner v. New York 198 U.S. 45 (1905) at 75.

[3] John Locke, Two Treatises of Government (edited by Peter Laslett, CUP 1980) par. 222. Cf par. 85, 94, 124, 134, 138.

[4] Ibid par. 123.

[5] Ibid par. 87

[6] Ibid par 3: ‘[P]olitical power then I take to be a right of making laws with penalties of death, and consequently all less penalties, for the regulating and preserving of property.’

[7] The most illustrative example of this is the European Convention of Human Rights and Fundamental Freedoms itself, which reflects the common constitutional traditions of the signatory (European) states on fundamental rights. Article 1 of Protocol No. 1 of the Convention enounces the principle of peaceful enjoyment of property (para. 1), but at the same time it subsumes its use under state control so that it be ‘in accordance with the general interest’ (para. 2). The case-law of the European Court of Human Rights has always reaffirmed this view (see, inter alia, Sporrong and Lönnroth v. Sweden, Judgment of 23 September 1982, para. 61).

[8] Declaration of the Rights of Man and of the Citizen, art.17.

[9] “By the end of the 1990s, virtually every system of effective constitutional justice in the world, with the partial exception of the United States, had embraced the main tenets of P[roportionality] A[nalysis]”. Alec Stone and Sweet-Jud Mathews, Proportionality Balancing and Global Constitutionalism, 47 COLUMBIA JOURNAL OF TRANSNATIONAL LAW, 73, 74, (2008).

[10] For an overview of the use of proportionality in the case-law of the European Court of Human Rights see Tsakyrakis, ‘Proportionality: An Assault on Human Rights?’ [2009] 7 Int’l J. Const’l L. 468.

[11] See, in general, Hickman, ‘Proportionality: Comparative Law Lessons’ [2007] 12 Jud. Rev. 31, passim.

[12] Robert Alexy, Rights, Legal Reasoning and Rational Discourse, 5 RATIO JURIS 143,145 (1992).

[13] See David Beatty, The Ultimate Rule of Law (OUP 2004)

[14] See Mattias Kumm, ‘The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review’ [2010] 4 Law & Ethics of Human Rights 141.

[15] See Stavros Tsakyrakis, supra n.10.

[16] Thomas Hobbes, Leviathan (edited by Edwin Curley, Hackett Publishing 1994) at 80.

[17] Falconry is a sport of hunting with falcons. Men train the birds to do the hunting. See Frank Michelman, ‘Foxy Freedom?’ (2010) BOSTON UNIVERSITY LAW REVIEW 949 at 965. There Michelman discusses the activity inspired by a case that was brought before German courts.

[18] BVerfGE 54, 143.

[19] The spitting on the public sidewalks is not drawn from an actual case, but a spirited example of Michelman, (n17) at 952.

[20] The collapse of communism lent additional support to the idea that what distinguishes a ‘minimal’ from an “expansive” state is not efficiency but freedom. Indeed, it was freedom and not welfare that was offered to individuals in exchange for the misery that followed the end of communism.

[21] Ronald Dworkin, A Matter of Principle (Harvard University Press, 1985) 189

[22] ‘It is not demeaning for you to accept that a majority of your fellow citizens has the right to fix traffic rules and enforce the rules they fix, provided that the rules they chose are not wicked or desperately foolish’. Ronald Dworkin, Justice For Hedgehogs (Harvard Univ. Press 2011) 367

[23] ‘Throughout the history of democratic thought the focus has been on achieving certain specific liberties and constitutional guarantees, as found for example, in various bills of rights and declaration of the rights of man’.  John Rawls, Political Liberalism (Columbia University Press, 1993) 292.

[24] Ibid at 293. Quite instructively, Rawls himself felt compelled to utilize the notion of basic liberties in the light of HLA Hart’s famous critique of the initial formulation of the liberty principle in A Theory of Justice. See HLA Hart, Rawls on Liberty and Its Priority, UNIVERSITY OF CHICAGO LAW REVIEW 40/ 3 551, 553 (1973) and J Rawls, ‘The Basic Liberties and their Priority’ in JOHN RAWLS, COLLECTED PAPERS (edited by Samuel Freeman, HARVARD UNIV. PRESS 1999). In important respects, my critique of total freedom echoes Hart’s view. The failure he identified in Rawls’s original proposal is the one I attribute to the principle of proportionality.

[25] Ronald Dworkin, Justice in Robes (Harvard University Press 2006) 115

[26] Roland Dworkin, supra n. 22, at 366

[27] But see Michelman and his Malthus Act hypothetical arguing that sometimes Dworkin’s formula could be narrower and not include traditional core liberties. Michelman (n17) at 968-970.

[28] Ronald Dworkin, supra  n.22, at 366.

[29] See Ronald Dworkin, Rights as Trumps, in Jeremy Waldron (ed), Theories of Rights (OUP 1984) 153.

[30] Painting one’s Georgian house purple is Dworkin’s example. See Dworkin, supra n. 22, at 346.

[31] Dworkin, supra n. 22, at 367

[32] Mattias Kumm, The Idea of Socratic Contestation and the Right to Justification (2010) 4 LAW & ETHICS OF HUMAN RIGHTS, 142 at 151. ‘In Germany’, Kumm says, ‘the right to the “free development of personality” is interpreted as a general right to liberty understood as the right to do or not to do whatever you please. It has been held by the Constitutional Court to include such mundane things as a right to ride horses through public woods, feeding pigeons on public squares, or the right to trade a particular breed of dogs’. Id  (notes omitted).  

[33] Ibid at 164.

[34] This is not to say that judges are eager to take up such an intrusive role or that they actually exercise it. In fact, they typically devise strategies to limit their interference with political decisions. This applies with even more force at the supranational level. The doctrine of the margin of appreciation is a characteristic example. Often those strategies bear the mark of their origin. They replicate the philosophical confusion and dead ends of the principle of proportionality. If we abandon the principle of proportionality, the usefulness and cogency of such strategies is likely to be greatly diminished. On the other hand, when sometimes the judges assume an expanded notion of judicial review and proceed to apply the proportionality their judgment seems totally ad hoc and arbitrary. For such a characteristic example see the case of the European Court of Human Rights Mamidakis c. Grece (Judgment of 11 January 2007) where the amount of a fine, although found by the Greek courts to be proportionate, was held to be excessive by the supranational Court without any argument other than the amount of the fine.

[35] Beatty, supra n. 13.


 [U1]In my view, this (now amended) paragraph reconnects my argument with the notion of justice. At the same time, it clarifies what I mean with the term ‘adjudicative individualism’, which follows in the next paragraph.

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2 Responses to Disproportionate Individualism

  1. Pericles S. Vallianos says:

    γειά σου σταύρε, I strongly agree with you that there is no socially unrestricted “right to everything”. But sociability must still be liberal, as you obviously also say. Having rejected proportionality the crux of the question seems to be how you determine that core of rights that define dignity or a morally autonomous life. If in proportionality there is indeed a slippery slope to “Hobbes in the city,” there is also one in an Aristotelianism that privileges the whole over the parts. Isn’t there a danger lurking somewhere in communalism or communitarianism also? What exactly is it and how does one fight it, for fight it we must if we want to remain liberal -especially in a country like ours?

  2. Pericles S. Vallianos says:

    Just a follow up thought. Your argumentation is based primarily upon decisions of courts, especially the one in Karlsruhe. But I wonder whether it would be right to extrapolate on this fact to the effect that the European civic ethos, collective consciousness, political and social model or what have you have all been taken over by that extreme individualism which you rightly decry. This sounds to me like saying that Europe today is rushing headlong into the abyss of “neo-liberalism” as the enemies of Europe and the enemies of liberalism in general are claiming. Are you saying that the prevalence of a given legal doctrine (proportionality) has undermined all the distinctive features of European civilization across the board, which are indeed based on justice in the distribution of social goods, and that somehow we have fallen or are falling into a pit of mindless libertarianism more extreme than even the stupidity of the Tea Party?

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