Proportionality, Balancing, and Rights

Proportionality, Balancing, and Rights
Author: Jan-R. Sieckmann
Publisher: Springer Nature
Total Pages: 255
Release:
Genre: Civil rights
ISBN: 3030773213

The book focuses on Robert Alexy's theory of constitutional rights. Alexy systematically presented the theory in his seminal book Theorie der Grundrechte (1985; Engl. translation Theory of Constitutional Rights, 2002) and continued to develop it in numerous subsequent articles. Arguably still the most influential theory of constitutional rights, it has found widespread academic support, as well as recognition in several constitutional jurisdictions. On the other hand, it has also been the object of considerable criticism. The aim of this book is to outline the central aspects of Alexy's theory as he sees them, and to further develop the principles of constitutional, fundamental, and human rights by applying a constructive criticism of his theory.

Proportionality

Proportionality
Author: Aharon Barak
Publisher: Cambridge University Press
Total Pages: 638
Release: 2012-01-19
Genre: Law
ISBN: 9781107401198

Having identified proportionality as the main tool for limiting constitutional rights, Aharon Barak explores its four components (proper purpose, rational connection, necessity and proportionality stricto sensu) and discusses the relationships between proportionality and reasonableness and between courts and legislation. He goes on to analyse the concept of deference and to consider the main arguments against the use of proportionality (incommensurability and irrationality). Alternatives to proportionality are compared and future developments of proportionality are suggested.

Local Meanings of Proportionality

Local Meanings of Proportionality
Author: Afroditi Marketou
Publisher: Cambridge University Press
Total Pages: 423
Release: 2021-07-22
Genre: Law
ISBN: 1108834485

A strong counter-argument to the universalising discourse on proportionality and global constitutionalism.

Proportionality Principles in American Law

Proportionality Principles in American Law
Author: E. Thomas Sullivan
Publisher: Oxford University Press
Total Pages: 297
Release: 2009
Genre: Law
ISBN: 0195324935

From the ancient origins of Just War doctrine to contemporary theories of punishment, concepts of proportionality have long been an instrumental part of the rule of law and an essential check on government power. Two renowned legal scholars seek to advance such a theory.

Proportionality and Facts in Constitutional Adjudication

Proportionality and Facts in Constitutional Adjudication
Author: Anne Carter
Publisher: Bloomsbury Publishing
Total Pages: 238
Release: 2022-01-27
Genre: Law
ISBN: 1509936998

This book considers the relationship between proportionality and facts in constitutional adjudication. Analysing where facts arise within each of the three stages of the structured proportionality test – suitability, necessity, and balancing – it considers the nature of these 'facts' vis-à-vis the facts that arise in the course of ordinary litigation. The book's central focus is on how proportionality has been applied by courts in practice, and it draws on the comparative experience of four jurisdictions across a range of legal systems. The central case study of the book is Australia, where the embryonic and contested nature of proportionality means it provides an illuminating study of how facts can inform the framing of constitutional tests. The rich proportionality jurisprudence from Germany, Canada, and South Africa is used to contextualise the approach of the High Court of Australia and to identify future directions for proportionality in Australia, at a time when the doctrine is in its formative stages. The book has three broad aims: First, it considers the role of facts within proportionality reasoning. Second, it offers procedural insights into fact-finding in constitutional litigation. Third, the book's analysis of the dynamic Australian case-law on proportionality means it also serves to clarify the nature and status of proportionality in Australia at a critical moment. Since the 2015 decision of McCloy v New South Wales, where four justices supported the introduction of a structured three-part test of proportionality, the Court has continued to disagree about the utility of such a test. These developments mean that this book, with its doctrinal and comparative approach, is particularly timely.

Proportionality in Law

Proportionality in Law
Author: David Duarte
Publisher: Springer
Total Pages: 198
Release: 2018-07-30
Genre: Law
ISBN: 3319896474

This book addresses the principle of proportionality, which is currently one of the most important instruments of judicial review, from both analytical and theory of law perspectives. As such, the analysis provided is far more comprehensive and can be applied to all areas of law, not just constitutional law. On the one hand, the volume offers a broad perspective on several aspects related to proportionality, such as its structure, the balancing methodology and the distinction between rules and principles. On the other, it provides an innovative, normativist and analytical approach to proportionality, helping readers understand its structure and behaviour.

Proportionality and Transformation

Proportionality and Transformation
Author: Francisca Pou-Giménez
Publisher: Cambridge University Press
Total Pages: 353
Release: 2022-11-03
Genre: Law
ISBN: 1009201778

This is the first book on proportionality in Latin American constitutional law. Leading scholars in the region explore how proportionality analysis has become a key part of the constitutional law of a region where, almost paradoxically, constitutions with clear transformative intentions coexist with the highest indicators of social inequality in the world. In this book, scholars, practitioners and students will find a fascinating account of how proportionality has been a central concept in Latin America's constitutional struggles to curtail excessive uses of state power. The book illustrates how, more recently, proportionality has played an important role in national processes of constitutionalization and transitional justice, and how its current uses in the domain of social rights endow it with a distinctive meaning and role in regional constitutionalism. This pioneering book opens up the space for a much needed global conversation on how Latin America has decisively contributed to comparative constitutional law.

Revisiting Proportionality in International and European Law

Revisiting Proportionality in International and European Law
Author: Ulf Linderfalk
Publisher: BRILL
Total Pages: 230
Release: 2021-05-12
Genre: Law
ISBN: 9004448071

In this edited volume, scholars from a wide range of areas of international law consider whose interests are at stake in the application of the principle of proportionality. In so doing, the volume casts new light this important principle.

Borrowing Justification for Proportionality

Borrowing Justification for Proportionality
Author: João Andrade Neto
Publisher: Springer
Total Pages: 349
Release: 2018-11-11
Genre: Law
ISBN: 3030022633

The proportionality test, as proposed in Robert Alexy’s principles theory, is becoming commonplace in comparative constitutional studies. And yet, the question “are courts justified in borrowing proportionality?” has not been expressly put in many countries where judicial borrowings are a reality. This book sheds light on this question and examines the circumstances under which courts are authorized to borrow from alien legal sources to rule on constitutional cases. Taking the Supreme Federal Court of Brazil – and its enthusiastic recourse to proportionality when interpreting the Federal Constitution – as a case study, the book investigates the normative reasons that could justify the court’s attitude and offers a comprehensive overview of its case law on controversial constitutional matters like abortion, same-sex union, racial quotas, and the right to public healthcare. Providing a valuable resource for those interested in comparative constitutional law and legal theory, or curious about Brazilian constitutional law, this book questions the alleged universality of the proportionality test, challenges the premises of Alexy’s principles theory, and discloses more than 68 Brazilian Supreme Court decisions delivered from 2003 to 2018 that would otherwise have remained unknown to an English-speaking audience.

Proportionality and the Rule of Law

Proportionality and the Rule of Law
Author: Grant Huscroft
Publisher: Cambridge University Press
Total Pages: 433
Release: 2014-04-21
Genre: Law
ISBN: 1107064074

Leading constitutional theorists debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning.