Gov 312L Balancing Rights 3.7A Andrew Claphams Very Short Introduction to Human Rights on Balancing Rights: Balancing between individual freedom and interests of community is not always appropriate, such as in cases of o Torture o Right to life o Rights of detainees o Fair trials Some people say the rights listed above are actually absolute and should have a sort of protection But other rights may be limited o National security I.e. if your right to privacy is getting in the way of govt. investigating a terrorist o Public order o The rights of others The rights can be limited if need be o Sounds like strict scrutiny (Clapham uses similar language) Rational basis test Legislation only has to have legitimate govt interest (Clapham: legitimate govt. aim) strict scrutiny o Same concept: balancing rights Claphams Standard: Proportionality The concept that helps to determine when a restriction on freedom becomes a violation of human rights Consider the weight we wish to give the fundamental values that we are seeking to promote o There is a hierarchy of rights, we need to consider that hierarchy This weight determines whether or not the restrictions are acceptable o We have a right o We think about how important it is o Based on that, we decide if the restrictions are acceptable given the weight we place on the other persons rights In other words, the limit placed on rights must be proportionate to the aim pursued o This is why we call it proportionality Context is essential to any determination o Proportionality: all about context Criteria for Proportionality Is there a legitimate aim to the interference? o Rational Basis Test: Is there a legitimate govt interest? o Strict scrutiny: a compelling state interest Is the interference prescribed by a clear and accessible law?