A Critique of Proportionality and Balancing

Author: Francisco Urbina

Publisher: Cambridge University Press

ISBN: 1107175062

Category: Law

Page: 288

View: 1097

This book offers a comprehensive critique of the principle of proportionality and balancing as applied to human and constitutional rights.
Posted in Law

Proportionality and the Rule of Law

Rights, Justification, Reasoning

Author: Grant Huscroft,Bradley W. Miller,Gregoire Webber

Publisher: Cambridge University Press

ISBN: 1139952870

Category: Law

Page: N.A

View: 7942

To speak of human rights in the twenty-first century is to speak of proportionality. Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, South Africa, and the United States, as well as the jurisprudence of treaty-based legal systems such as the European Convention on Human Rights. Proportionality provides a common analytical framework for resolving the great moral and political questions confronting political communities. But behind the singular appeal to proportionality lurks a range of different understandings. This volume brings together many of the world's leading constitutional theorists - proponents and critics of proportionality - to debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning. Their essays provide important new perspectives on this leading doctrine in human rights law.
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Proportionality and Constitutional Culture

Author: Moshe Cohen-Eliya,Iddo Porat

Publisher: Cambridge University Press

ISBN: 1107244757

Category: Law

Page: N.A

View: 1441

Although the most important constitutional doctrine worldwide, a thorough cultural and historical examination of proportionality has not taken place until now. This comparison of proportionality with its counterpart in American constitutional law - balancing - shows how culture and history can create deep differences in seemingly similar doctrines. Owing to its historical origin in Germany, proportionality carries to this day a pro-rights association, while the opposite is the case for balancing. In addition, European legal and political culture has shaped proportionality as intrinsic to the state's role in realizing shared values, while in the United States a suspicion-based legal and political culture has shaped balancing in more pragmatic and instrumental terms. Although many argue that the USA should converge on proportionality, the book shows that a complex web of cultural associations make it an unlikely prospect.
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The Negotiable Constitution

On the Limitation of Rights

Author: Grégoire C. N. Webber

Publisher: Cambridge University Press

ISBN: 1139483730

Category: Law

Page: N.A

View: 8700

In matters of rights, constitutions tend to avoid settling controversies. With few exceptions, rights are formulated in open-ended language, seeking consensus on an abstraction without purporting to resolve the many moral-political questions implicated by rights. The resulting view has been that rights extend everywhere but are everywhere infringed by legislation seeking to resolve the very moral-political questions the constitution seeks to avoid. The Negotiable Constitution challenges this view. Arguing that underspecified rights call for greater specification, Grégoire C. N. Webber draws on limitation clauses common to most bills of rights to develop a new understanding of the relationship between rights and legislation. The legislature is situated as a key constitutional actor tasked with completing the specification of constitutional rights. In turn, because the constitutional project is incomplete with regards to rights, it is open to being re-negotiated by legislation struggling with the very moral-political questions left underdetermined at the constitutional level.
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The Constitutional Structure of Proportionality

Author: Matthias Klatt,Moritz Meister

Publisher: Oxford University Press on Demand

ISBN: 0199662460

Category: Law

Page: 184

View: 1139

Proportionality is one of the most important principles in constitutional law, relevant throughout the law and in jurisdictions worldwide. Setting out the 'state of the art' in proportionality doctrine, this book combines theoretical reconstruction with case-law examples, defending and developing the dominant model of proportionality.
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Proportionality and Judicial Activism

Author: Niels Petersen

Publisher: Cambridge University Press

ISBN: 1107177987

Category: Law

Page: 258

View: 1969

The principle of proportionality is currently one of the most discussed topics in the field of comparative constitutional law. Many critics claim that courts use the proportionality test as an instrument of judicial self-empowerment. Proportionality and Judicial Activism tests this hypothesis empirically; it systematically and comparatively analyses the fundamental rights jurisprudence of the Canadian Supreme Court, the German Federal Constitutional Court and the South African Constitutional Court. The book shows that the proportionality test does give judges a considerable amount of discretion. However, this analytical openness does not necessarily lead to judicial activism. Instead, judges are faced with significant institutional constraints, as a result of which all three examined courts refrain from using proportionality for purposes of judicial activism.
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The Alchemists

Questioning our Faith in Courts as Democracy-Builders

Author: Tom Gerald Daly

Publisher: Cambridge University Press

ISBN: 1108287190

Category: Law

Page: N.A

View: 2169

Can courts really build democracy in a state emerging from authoritarian rule? This book presents a searching critique of the contemporary global model of democracy-building for post-authoritarian states, arguing that it places excessive reliance on courts. Since 1945, both constitutional courts and international human rights courts have been increasingly perceived as alchemists, capable of transmuting the base materials of a nascent democracy into the gold of a functioning democratic system. By charting the development of this model, and critically analysing the evidence and claims for courts as democracy-builders, this book argues that the decades-long trend toward ever greater reliance on courts is based as much on faith as fact, and can often be counter-productive. Offering a sustained corrective to unrealistic perceptions of courts as democracy-builders, the book points the way toward a much needed rethinking of democracy-building models and a re-evaluation of how we employ courts in this role.
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Proportionality

New Frontiers, New Challenges

Author: Vicki C. Jackson,Mark Tushnet

Publisher: Cambridge University Press

ISBN: 1107165563

Category: Law

Page: 356

View: 2551

This book presents important new scholarship by leading figures in constitutional law on new challenges for proportionality doctrine.
Posted in Law

Reasoning Rights

Comparative Judicial Engagement

Author: Liora Lazarus,Christopher McCrudden,Nigel Bowles

Publisher: Bloomsbury Publishing

ISBN: 1782252347

Category: Law

Page: 382

View: 4711

This book is about judicial reasoning in human rights cases. The aim is to explore the question: how is it that notionally universal norms are reasoned by courts in such significantly different ways? What is the shape of this reasoning; which techniques are common across the transnational jurisprudence; and which are particular? The book, comprising contributions by a team of world-leading human rights scholars, moves beyond simply addressing the institutional questions concerning courts and human rights, which often dominate discussions of this kind, seeking instead a deeper examination of the similarities and divergence of reasonings by different courts when addressing comparable human rights questions. These differences, while partly influenced by institutional concerns, cannot be attributed to them alone. This book explores the diverse and rich underlying spectrum of human rights reasoning, as a distinctive and particular form of legal reasoning, evident in the case studies across the selected jurisdictions.
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The Constitutional Protection of Capitalism

Author: Danny Nicol

Publisher: Bloomsbury Publishing

ISBN: 1847315593

Category: Law

Page: 220

View: 8285

In 1945 a Labour government deployed Britain's national autonomy and parliamentary sovereignty to nationalise key industries and services such as coal, rail, gas and electricity, and to establish a publicly-owned National Health Service. This monograph argues that constitutional constraints stemming from economic and legal globalisation would now preclude such a programme. It contends that whilst no state has ever, or could ever, possess complete freedom of action, nonetheless the rise of the transnational corporation means that national autonomy is now siginificantly restricted. The book focuses in particular on the way in which these economic constraints have been nurtured, reinforced and legitimised by the creation on the part of world leaders of a globalised constitutional law of trade and competition. This has been brought into existence by the adoption of effective enforcement machinery, sometimes embedded within the nation states, sometimes formed at transnational level. With Britain enmeshed in supranational economic and legal structures from which it is difficult to extricate itself, the British polity no longer enjoys the range and freedom of policymaking once open to it. Transnational legal obligations constitute not just law but in effect a de facto supreme law entrenching a predominantly neoliberal political settlement in which the freedom of the individual is identified with the freedom of the market. The book analyses the key provisions of WTO, EU and ECHR law which provide constitutional protection for private enterprise. It dwells on the law of services liberalisation, public monopolies, state aid, public procurement and the fundamental right of property ownership, arguing that the new constitutional order compromises the traditional ideals of British democracy.
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Proportionality and Deference in Investor-State Arbitration

Balancing Investment Protection and Regulatory Autonomy

Author: Caroline Henckels

Publisher: Cambridge University Press

ISBN: 1316432300

Category: Law

Page: N.A

View: 4537

In this study, Caroline Henckels examines how investment tribunals have balanced the competing interests of host states and foreign investors in determining state liability in disputes concerning the exercise of public power. Analyzing the concepts of proportionality and deference in investment tribunals' decision-making in comparative perspective, the book proposes a new methodology for investment tribunals to adopt in regulatory disputes, which combines proportionality analysis with an institutionally sensitive approach to the standard of review. Henckels argues that adopting a modified form of proportionality analysis would provide a means for tribunals to decide cases in a more consistent and coherent manner leading to greater certainty for both states and investors, and that affording due deference to host states in the determination of liability would address the concern that the decisions of investment tribunals unjustifiably impact on the regulatory autonomy of states.
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Patriarchal Religion, Sexuality, and Gender

A Critique of New Natural Law

Author: Nicholas Bamforth,David A. J. Richards

Publisher: Cambridge University Press

ISBN: 1139466305

Category: Law

Page: N.A

View: 8379

Legal theorists are familiar with John Finnis's book Natural Law and Natural Rights, but usually overlook his interventions in US constitutional debates and his membership of a group of conservative Catholic thinkers, the 'new natural lawyers', led by theologian Germain Grisez. In fact, Finnis has repeatedly advocated conservative positions concerning lesbian and gay rights, contraception and abortion, and his substantive moral theory (as he himself acknowledges) derives from Grisez. Bamforth and Richards provide a detailed explanation of the work of the new natural lawyers within and outside the Catholic Church - the first truly comprehensive explanation available to legal theorists – and criticize Grisez's and Finnis's arguments concerning sexuality and gender. New natural law is, they argue, a theology rather than a secular theory, and one which is unappealing in a modern constitutional democracy. This book will be of interest to legal and political theorists, ethicists, theologians and scholars of religious history.
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Balancing Constitutional Rights

The Origins and Meanings of Postwar Legal Discourse

Author: Jacco Bomhoff

Publisher: Cambridge University Press

ISBN: 1107044413

Category: Law

Page: 280

View: 2756

A comparative and historical account of the origins and meanings of the discourse of judicial 'balancing' in constitutional rights law.
Posted in Law

Ethics of Human Rights

Author: A. Reis Monteiro

Publisher: Springer Science & Business Media

ISBN: 3319035665

Category: Law

Page: 540

View: 6414

This volume focuses on the ethical significance of human rights, aiming at contributing to a universal culture of human rights with deep roots and wide horizons. Its purpose, scope and rationale are reflected in the three-part structure of the manuscript. Part I has a broad introductory historical, theoretical and legal character. Part II submits that an Ethics of Human Rights is best understood as an Ethics of Recognition of human worth, dignity and rights. Moreover, it is argued that human worth consists in the perfectibility of the human species, rooted in its semiotic nature, to be accomplished through the perfecting of human beings, for which the right to education is key. In Part III, the main legal and political outcomes of the Human Rights Revolution are described and answers to the most lasting and common criticisms of human rights are provided. To conclude, the human stature of the Big Five drafters of the Universal Declaration of Human Rights is profiled and the priority that should be recognized to human rights education is highlighted. Some appendices supplement the manuscript. While making a case for the high value and liberating power of the idea and ideal of human rights, objections, controversies and uncertainties are not at all overlooked and emerging issues are explored. The diversity of content of this volume meets many needs of the typical syllabus for a human rights course.
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A Theory of Constitutional Rights

Author: Robert Alexy,Julian Rivers

Publisher: Oxford University Press, USA

ISBN: 0199584230

Category: Law

Page: 462

View: 2748

This classic work of constitutional theory analyzes the general structure of constitutional rights and their judicial application. It deals with a wide range of problems common to all systems of constitutional rights review - from balancing rights to deciding the limits of their scope.
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In Defence of War

Author: Nigel Biggar

Publisher: OUP Oxford

ISBN: 0191652946

Category: Religion

Page: 384

View: 2751

Pacifism is popular. Many hold that war is unnecessary, since peaceful means of resolving conflict are always available, if only we had the will to look for them. Or they believe that war is wicked, essentially involving hatred of the enemy and carelessness of human life. Or they posit the absolute right of innocent individuals not to be deliberately killed, making it impossible to justify war in practice. Peace, however, is not simple. Peace for some can leave others at peace to perpetrate mass atrocity. What was peace for the West in 1994 was not peace for the Tutsis of Rwanda. Therefore, against the virus of wishful thinking, anti-military caricature, and the domination of moral deliberation by rights-talk In Defence of War asserts that belligerency can be morally justified, even though tragic and morally flawed.
Posted in Religion

Preventive Justice

Author: Andrew Ashworth,Lucia Zedner

Publisher: OUP Oxford

ISBN: 0191021059

Category: Law

Page: 310

View: 7696

This book arises from a three-year study of Preventive Justice directed by Professor Andrew Ashworth and Professor Lucia Zedner at the University of Oxford. The study seeks to develop an account of the principles and values that should guide and limit the state's use of preventive techniques that involve coercion against the individual. States today are increasingly using criminal law or criminal law-like tools to try to prevent or reduce the risk of anticipated future harm. Such measures include criminalizing conduct at an early stage in order to allow authorities to intervene; incapacitating suspected future wrongdoers; and imposing extended sentences or indefinate on past wrongdoers on the basis of their predicted future conduct - all in the name of public protection and security. The chief justification for the state's use of coercion is protecting the public from harm. Although the rationales and justifications of state punishment have been explored extensively, the scope, limits and principles of preventive justice have attracted little doctrinal or conceptual analysis. This book re-assesses the foundations for the range of coercive measures that states now take in the name of prevention and public protection, focussing particularly on coercive measures involving deprivation of liberty. It examines whether these measures are justified, whether they distort the proper boundaries between criminal and civil law, or whether they signal a larger change in the architecture of security. In so doing, it sets out to establish a framework for what we call 'Preventive Justice'.
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Partial Connections

Author: Marilyn Strathern

Publisher: Rowman Altamira

ISBN: 0759114935

Category: Social Science

Page: 188

View: 6766

Updated with a new Preface, this seminal work challenges the routine ways in which anthropologists have thought about the complexity and quantity of their materials. Marilyn Strathern focuses on a problem normally regarded as commonplace; that of scale and proportion. She combines a wide-ranging interest in current theoretical issues with close attention to the cultural details of social life, attempting to establish proportionality between them. Strathern gives equal weight to two areas of contemporary debate: The difficulties inherent in anthropologically representing complex societies, and the future of cross-cultural comparison in a field where 'too much' seems known. The ethnographic focus of this book emphasizes the context through which Melanesianists have managed the complexity of their own accounts, while at the same time unfolding a commentary on perception and the mixing of indigenous forms. Revealing unexpected replications in modes of thought and in the presentation of ambiguous images, Strathern has fashioned a unique contribution to the anthropological corpus. This book was originally published under the sponsorship of the Association for Social Anthropology in Oceania.
Posted in Social Science

Self-Defence in Criminal Law

Author: Boaz Sangero

Publisher: Bloomsbury Publishing

ISBN: 1847312748

Category: Law

Page: 394

View: 7955

This book combines a careful philosophical discussion of the rationale justifying self-defence with a detailed discussion of the range of statutory self-defence requirements, as well as discussions of numerous other relevant issues (i.e. putative self-defense, excessive self-defense, earlier guilt and battered women). The book argues that before formulating definitions for each aspect of self-defence (necessity, proportionality, retreat, immediacy, mental element, etc.) it is imperative to determine the proper rationale for self-defence and, only then to derive the appropriate solutions. The first part contains an in-depth discussion of why society allows a justification for acts but does not excuse the actor from criminal liability, and the author critically analyzes current theories (culpability of the aggressor; autonomy of the attacked person; protection of the social-legal order; balancing interests; choice of the lesser evil) and points out the weaknesses of each theory before proposing a new theory to explain the justification of self-defence. The new theory is that for the full justification of self-defence, a balance of interests must be struck between the expected physical injury to the attacked person and the expected physical injury to the aggressor, as well as the relevant abstract factors: the autonomy of the attacked person, the culpability of the aggressor, and the social-legal order. The author demonstrates how ignoring one or more of these factors leads to erroneous results and how the proposed rationale can be applied to develop solutions to the complex questions raised.
Posted in Law