A Plea for Moderate Optimisation: On the Structure of Constitutional Principles as Interpersonal Reasons
In this talk I will make a modest effort to overcome the dichotomy between a teleological and deontological understanding of constitutional rights, which I argue underpins the debate on the principle of proportionality in constitutional law. In an opening part I will introduce a standard account of constitutional principles as optimization requirements, which has come to be known as Theory of Principles [Prinzipientheorie], and then draw a distinction between a demanding and a moderate conception of optimisation. I will suggest that while the demanding conception is incompatible with the deontological character of rights, it is also one that does not find strong support in the standard account. Conversely the standard account lends support to a moderate conception of optimisation, which may be rendered compatible with the deontological character of constitutional rights. Whether it can be thus rendered, depends on the possibility of reconciling deontological with other impersonal (teleological) reasons, which I set out to explore in the third part of the talk. There I discuss the familiar distinction between agent-neutral and agent-relative reasons with an eye to demonstrating that no sharp separation can be maintained between these two conceptions of reasons, at least not in the Kantian framework within which the standard account of Theory of Principles operates.
In concluding, I will suggest out that a relaxation of the tension between agent-neutral and agent-relative reasons can contribute to a better understanding of the claim that legal principles aim at optimisation. A notable consequence is that proportionality control is better understood in terms of determination of abstract normative reasons (principles) than in terms of balancing between disparate or conflicting standards.
George Pavlakos
School of Law
University of Glasgow
Mon, Oct 23, 2017
04:00 PM - 06:00 PM
Room 200, Larkin Building
15 Devonshire Place