Feminizing Human Rights Adjudication: Feminist Method and the Proportionality Principle

Proportionality is one of the most important adjudicatory tools, in human rights decision-making, primarily employed to balance rights and interests. Despite this there is very little feminist analysis of its use by the courts. This article discusses the doctrine of proportionality and considers its amenability to feminist legal methods. It relies on theories of deliberative democracy to argue that the proportionality test can be applied in a manner that facilitates a more “interactive universalism”, allows for greater participation in decision-making and enables the courts to be more attentive to the disadvantaged. The commonalities between proportionality and feminist theory are examined, and its contribution to developing and reconstituting a more relational and contextual concept of rights is explored.