Proportionality, Stringency and Utility in the Jurisprudence of the European Court of Human Rights

Letwin, Jeremy (2023) Proportionality, Stringency and Utility in the Jurisprudence of the European Court of Human Rights. Human Rights Law Review, 23 (3). ISSN 1461-7781

Abstract

I argue that a form of indirect utilitarianism can provide a sufficiently plausible justification for three crucial elements of the ECtHR’s doctrine of proportionality to be taken seriously as an account of this doctrine. I show how indirect utilitarianism can account for the relation between moral rights and Convention rights, the resistance to trade-offs that is a particular property of Convention rights and the nature of the public interest against which rights must be balanced. I argue that the indirect utilitarian account provides a coherent interpretation of the Court’s jurisprudence concerning: (i) aims that express moralistic external preferences and their legitimacy; (ii) balancing and the doctrine of the ‘essence of rights’; and (iii) the Court’s reasoning in Dickson v UK. I conclude by exploring the further work needed to establish more firmly this account’s plausibility as an interpretation of the Court’s doctrine of proportionality as a whole.