Proportionality and the world of enemies

A major thread running through “Rights as Trumps?” is its focus on whether proportionality or a categorical approach to rights can best serve a polity’s capacity to live up to a political commitment of the first order: the commitment of citizens of a pluralistic liberal polity to live together in peace and mutual recognition. The paper discusses two mechanisms by which proportionality may achieve this: (1) by lowering the stakes of constitutional rights adjudication and (2) by acknowledging the rights of different parties. I explore the conditions under which the first mechanism is achieved, focusing on two issues: the relation of proportionality to precedent, and the existence of “single case issues”. I next question whether proportionality offers meaningful recognition of both parties, focusing on different ways proportionality discourse deflates rights. The paper concludes that differences between the categorical approach and proportionality are smaller than Greene’s piece conveys.