Introduction

Given its global success as a test for determining the content and permissible limitations of human rights, it is no surprise that proportionality has been the object of intense jurisprudential interest. But for the most part, philosophical analysis of proportionality has mainly drawn on the theory of practical reason, treating proportionality primarily as a formal method of argumentation. This collection of essays focuses on a hitherto underexplored philosophical aspect of proportionality, namely, its relationship with the moral concept of freedom. In recent years this connection has come to the fore, for example in controversies over the lawfulness of government measures aiming to tackle the COVID-19 pandemic, such as restrictions of movement and economic activity and compulsory vaccinations. The issue is typically framed in terms of the proportionality between the public benefit of these measures and the intensity of the interference with human rights such as privacy. However, for many scholars this framing is deeply problematic. It assumes that such restrictions amount to losses of valuable rights, which must be offset by an overriding public benefit. But, so the argument goes, we do not have even a prima facie right to be a public threat, for example by carrying a contagious virus; to think otherwise is to assume an antisocial notion of personal freedom. It is precisely this assumption to which, for these scholars, the proportionality doctrine is committed, because it typically adopts a not particularly discriminating definition of what counts as a prima facie interference with human rights. As a result, almost any activity or personal preference, however harmful, triggers a proportionality assessment.