A Critique of Proportionality and Balancing

Author: Francisco Urbina

Publisher: Cambridge University Press

ISBN: 1107175062

Category: Law

Page: 288

View: 7174

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

A Critique of Proportionality and Balancing

Author: Francisco J. Urbina

Publisher: Cambridge University Press

ISBN: 1316802957

Category: Law

Page: N.A

View: 5180

The principle of proportionality, which has become the standard test for adjudicating human and constitutional rights disputes in jurisdictions worldwide has had few critics. Proportionality is generally taken for granted or enthusiastically promoted or accepted with minor qualifications. A Critique of Proportionality and Balancing presents a frontal challenge to this orthodoxy. It provides a comprehensive critique of the proportionality principle, and particularly of its most characteristic component, balancing. Divided into three parts, the book presents arguments against the proportionality test, critiques the view of rights entailed by it, and proposes an alternative understanding of fundamental rights and their limits.
Posted in Law

A Critique of Proportionality and Balancing

Author: Francisco J. Urbina

Publisher: Cambridge University Press

ISBN: 9781316626818

Category: Law

Page: 267

View: 7118

The principle of proportionality, which has become the standard test for adjudicating human and constitutional rights disputes in jurisdictions worldwide has had few critics. Proportionality is generally taken for granted or enthusiastically promoted or accepted with minor qualifications. A Critique of Proportionality and Balancing presents a frontal challenge to this orthodoxy. It provides a comprehensive critique of the proportionality principle, and particularly of its most characteristic component, balancing. Divided into three parts, the book presents arguments against the proportionality test, critiques the view of rights entailed by it, and proposes an alternative understanding of fundamental rights and their limits.
Posted in Law

Proportionality and Constitutional Culture

Author: Moshe Cohen-Eliya,Iddo Porat

Publisher: Cambridge University Press

ISBN: 1107244757

Category: Law

Page: N.A

View: 5632

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.
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: 8140

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.
Posted in Law

The Constitutional Structure of Proportionality

Author: Matthias Klatt,Moritz Meister

Publisher: Oxford University Press on Demand

ISBN: 0199662460

Category: Law

Page: 184

View: 936

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.
Posted in Law

Proportionality

New Frontiers, New Challenges

Author: Vicki C. Jackson,Mark Tushnet

Publisher: Cambridge University Press

ISBN: 1107165563

Category: Law

Page: 356

View: 5080

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

Proportionality and Judicial Activism

Author: Niels Petersen

Publisher: Cambridge University Press

ISBN: 1107177987

Category: Law

Page: 258

View: 7192

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.
Posted in Law

The Migration of Constitutional Ideas

Author: Sujit Choudhry

Publisher: Cambridge University Press

ISBN: 9781139460774

Category: Law

Page: N.A

View: 4338

The migration of constitutional ideas across jurisdictions is one of the central features of contemporary constitutional practice. The increasing use of comparative jurisprudence in interpreting constitutions is one example of this. In this 2007 book, leading figures in the study of comparative constitutionalism and comparative constitutional politics from North America, Europe and Australia discuss the dynamic processes whereby constitutional systems influence each other. They explore basic methodological questions which have thus far received little attention, and examine the complex relationship between national and supranational constitutionalism - an issue of considerable contemporary interest in Europe. The migration of constitutional ideas is discussed from a variety of methodological perspectives - comparative law, comparative politics, and cultural studies of law - and contributors draw on case-studies from a wide variety of jurisdictions: Australia, Hungary, India, South Africa, the United Kingdom, the United States, and Canada.
Posted in Law

Proportionality and the Rule of Law

Rights, Justification, Reasoning

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

Publisher: Cambridge University Press

ISBN: 9781107647954

Category: Law

Page: 432

View: 3833

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.
Posted in Law

Reasoning Rights

Comparative Judicial Engagement

Author: Liora Lazarus,Christopher McCrudden,Nigel Bowles

Publisher: Bloomsbury Publishing

ISBN: 1849468141

Category: Law

Page: 382

View: 4766

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.
Posted in Law

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: 4727

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.
Posted in Law

The Global Model of Constitutional Rights

Author: Kai Möller

Publisher: Oxford University Press

ISBN: 0199664609

Category: Law

Page: 222

View: 5512

The book presents a theory of constitutional rights law. It shows that there is now a 'global' model of constitutional rights, which means that certain structural features of rights are accepted in most jurisdictions where rights are judicially enforced. Drawing on analyses of a broad range of cases from the U.K., the European Court of Human Rights, Germany, Canada, the U.S., and South Africa, the book provides the first substantive moral, reconstructive theory ofthe global model. It develops a philosophically coherent conception of rights and provides original and useful accounts of important doctrines and developments of human and constitutional rights law, including rights inflation, horizontal effect, positive obligations, socio-economic rights, themargin of appreciation, balancing, and proportionality.
Posted in Law

The Constitutional Protection of Capitalism

Author: Danny Nicol

Publisher: Bloomsbury Publishing

ISBN: 1847315593

Category: Law

Page: 220

View: 6400

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.
Posted in Law

Proportionality and Deference in Investor-State Arbitration

Author: Caroline Henckels

Publisher: Cambridge University Press

ISBN: 1107087902

Category: Law

Page: 200

View: 1243

Caroline Henckels examines how investment tribunals should balance competing state and investor interests in determining state liability in regulatory disputes.
Posted in Law

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: 6660

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

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: 3105

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.
Posted in Law

Self-Defence in Criminal Law

Author: Boaz Sangero

Publisher: Bloomsbury Publishing

ISBN: 1847312748

Category: Law

Page: 394

View: 3999

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

Courts and Democracies in Asia

Author: Po Jen Yap

Publisher: Cambridge University Press

ISBN: 1107192625

Category: Law

Page: 252

View: 6415

This book illuminates how law and politics interact in the judicial doctrines and explores how democracy sustains and is sustained by the exercise of judicial power.
Posted in Law