Proportionality

Abstract This chawepter argues that the proportionality test should be used to adjudicate rights conflicts in a sentience-based constitution. To do so, it develops a theory of the proportionality test read in conformity with the Non-Instrumentalization Principle, according to which rights-holders are inherently valuable and may not be used as mere means for others’ purposes. This theory of the proportionality test forbids utilitarian trade-offs which would allow sacrificing sentient beings for the greater good. The chapter demonstrates how the Non-Instrumentalization Principle should guide the proportionality test. First, only other fundamental rights are permissible grounds for restricting a fundamental right. This means that measures that restrict a fundamental right need to be suitable and necessary for promoting another fundamental right so that no constitutional subject is unduly instrumentalized. Second, the balancing stage of the test needs to be read in light of constitutional values, especially the idea of equal concern and respect for all sentient beings. This prohibits the automatic prioritization of the rights of one class of sentient beings (such as humans) over the rights of others (such as other sentient animals). Rather, a context-sensitive analysis of the relevant interests and capacities needs to be undertaken to determine whose well-being is more heavily impacted by a governmental measure.