Law as a normative system must include human rights principles and the principle of proportionality. Human rights principles follow from the demands of autonomous agents to respect their fundamental interests. The principle of proportionality requires a correct balancing of competing normative arguments. Recognition of these principles hence presents a minimal requirement of the protection of human rights or fundamental rights. In this view, rights are connected with interests, that is, with demands of autonomous agents of what they want to be realised or protected. Rights serve or protect interests. The derivation of rights from interest-based demands suggests that the structure of balancing corresponds to that of balancing individual interests. This assumption, however, is not beyond doubt. The doubt results from the fear that a balancing of a right with other interests might give too little protection to the right. This, however, does not put in doubt balancing and proportionality as minimal requirements for the protection of fundamental rights, which does not exclude stronger forms of human rights protection.

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Rights Balancing

  • Jan-R. Sieckmann

摘要

Law as a normative system must include human rights principles and the principle of proportionality. Human rights principles follow from the demands of autonomous agents to respect their fundamental interests. The principle of proportionality requires a correct balancing of competing normative arguments. Recognition of these principles hence presents a minimal requirement of the protection of human rights or fundamental rights. In this view, rights are connected with interests, that is, with demands of autonomous agents of what they want to be realised or protected. Rights serve or protect interests. The derivation of rights from interest-based demands suggests that the structure of balancing corresponds to that of balancing individual interests. This assumption, however, is not beyond doubt. The doubt results from the fear that a balancing of a right with other interests might give too little protection to the right. This, however, does not put in doubt balancing and proportionality as minimal requirements for the protection of fundamental rights, which does not exclude stronger forms of human rights protection.