• Law

Proportionality and the Rule of Law

Rights, Justification, Reasoning
Author: Grant Huscroft,Bradley W. Miller,Gregoire Webber
Publisher: Cambridge University Press
ISBN: 1107064074
Category: Law
Page: 432
View: 3339
"To speak of human rights is to speak of proportionality. It is no exaggeration to claim that proportionality has overtaken rights as the orienting idea in contemporary human rights law and scholarship. Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, and South Africa, as well as the jurisprudence of treaty-based legal systems like the European Court of Human Rights, giving rise to claims of a global model, a received approach, or, simply, the best-practice standard of rights adjudication. Even in the United States, which is widely understood to have formally rejected proportionality, some argue that the various levels of scrutiny adopted by the US Supreme Court are analogous to the standard questions posed by proportionality. As proportionality scholars are well aware, some of the early literature on balancing and rights is American, with special reference to the First Amendment. Notwithstanding proportionality's popularity, there is no consensus on its methodology. Much less does the use of a proportionality doctrine guarantee consensus on substantive rights questions. What the principle of proportionality promises is a common analytical framework, a framework the significance of which is not in its ubiquity (a mere fact), but because its structure influences (some would say controls) how courts reason to conclusions in many of the great moral and political questions confronting political communities. As a framework, proportionality analysis is superficially straightforward, setting out four questions in evaluating whether the limitation of a right is justifiable. A serviceable - but by no means canonical"--

    • 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: 5261
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.

    • Law

A Theory of Constitutional Rights


Author: Robert Alexy,Julian Rivers
Publisher: Oxford University Press, USA
ISBN: 0199584230
Category: Law
Page: 462
View: 5445
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.

    • Law

Proportionality

Constitutional Rights and their Limitations
Author: Aharon Barak
Publisher: Cambridge University Press
ISBN: 9781107401198
Category: Law
Page: 638
View: 5718
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.

    • 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: 1545
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.

    • Law

Proportionality and Judicial Activism


Author: Niels Petersen
Publisher: Cambridge University Press
ISBN: 1107177987
Category: Law
Page: 258
View: 5800
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.

    • Law

Proportionality

New Frontiers, New Challenges
Author: Vicki C. Jackson,Mark Tushnet
Publisher: Cambridge University Press
ISBN: 1107165563
Category: Law
Page: 356
View: 7738
This book presents important new scholarship by leading figures in constitutional law on new challenges for proportionality doctrine.

    • 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: 5671
A comparative and historical account of the origins and meanings of the discourse of judicial 'balancing' in constitutional rights law.

    • Law

The Global Model of Constitutional Rights


Author: Kai Möller
Publisher: Oxford University Press
ISBN: 0199664609
Category: Law
Page: 222
View: 3524
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.

    • Law

Proportionality and Constitutional Culture


Author: Moshe Cohen-Eliya,Iddo Porat
Publisher: Cambridge University Press
ISBN: 1107244757
Category: Law
Page: N.A
View: 940
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.

    • Law

A Critique of Proportionality and Balancing


Author: Francisco Urbina
Publisher: Cambridge University Press
ISBN: 1107175062
Category: Law
Page: 288
View: 1643
This book offers a comprehensive critique of the principle of proportionality and balancing as applied to human and constitutional rights.

    • Law

The Rule of Law and the Separation of Powers


Author: Richard Bellamy
Publisher: Routledge
ISBN: 1351540696
Category: Law
Page: 600
View: 811
The rule of law is frequently invoked in political debate, yet rarely defined with any precision. Some employ it as a synonym for democracy, others for the subordination of the legislature to a written constitution and its judicial guardians. It has been seen as obedience to the duly-recognised government, a form of governing through formal and general rule-like laws and the rule of principle. Given this diversity of view, it is perhaps unsurprising that certain scholars have regarded the concept as no more than a self-congratulatory rhetorical device. This collection of eighteen key essays from jurists, political theorists and public law political scientists, aims to explore the role law plays in the political system. The introduction evaluates their arguments. The first eleven essays identify the standard features associated with the rule of law. These are held to derive less from any characteristics of law per se than from a style of legislating and judging that gives equal consideration to all citizens. The next seven essays then explore how different ways of separating and dispersing power contribute to this democratic style of rule by forcing politicians and judges alike to treat people as equals and regard none as above the law.

    • Law

The Constitutional Structure of Proportionality


Author: Matthias Klatt,Moritz Meister
Publisher: Oxford University Press on Demand
ISBN: 0199662460
Category: Law
Page: 184
View: 3232
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.

    • Law

Proportionality and Deference Under the UK Human Rights Act

An Institutionally Sensitive Approach
Author: Alan D. P. Brady
Publisher: Cambridge University Press
ISBN: 1107013003
Category: Law
Page: 291
View: 9983
Revision of thesis (Doctoral)- London School of Economics, 2010.

    • Law

The New Zealand Bill of Rights


Author: Paul Rishworth
Publisher: Oxford University Press, USA
ISBN: N.A
Category: Law
Page: 852
View: 6313
This important new book is an accessible, incisive account of over a decade of jurisprudence and thinking about the New Zealand Bill of Rights. Its detail and underlying research is extremely impressive not only because of its comprehensive treatment of New Zealand jurisprudence, but also because of its strong theoretical component and detailed use of comparative sources.

    • History

Reason of State


Author: Thomas Poole
Publisher: Cambridge University Press
ISBN: 1107089891
Category: History
Page: 316
View: 7343
An original work on the important idea of reason of state and British and imperial history and constitutional theory.

    • Law

Proportionality in Law

An Analytical Perspective
Author: David Duarte,Jorge Silva Sampaio
Publisher: Springer
ISBN: 3319896474
Category: Law
Page: 192
View: 6532
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.

    • Law

The Ultimate Rule of Law


Author: David M. Beatty
Publisher: Oxford University Press, USA
ISBN: 9780199269808
Category: Law
Page: 193
View: 1273
The Ultimate Rule of Law examines judgments of leading courts around the world on issues such as religious freedom, sex discrimination, and social and economic rights. Beatty develops a radical alternative to the conventional view that in deciding these cases judges engage in an essentially interpretative, and thus subjective act, relying ultimately on their personal beliefs and political opinions. Beatty's analysis shows that it is possible to apply an impartial and objective method of judicial review, based on the principle of proportionality, which acts as an ultimate rule of law and is fully compatible with the ideals of democracy and popular sovereignty.Readership: Scholars, practitioners, and students.

    • Convention for the Protection of Human Rights and Fundamental Freedoms

The Margin of Appreciation

Interpretation and Discretion Under the European Convention on Human Rights
Author: Steven C. Greer
Publisher: Council of Europe
ISBN: 9287143501
Category: Convention for the Protection of Human Rights and Fundamental Freedoms
Page: 58
View: 9848
The term 'margin of appreciation' has been used for some time to refer to the room for manoeuvre that the Strasbourg institutions are prepared to accord national authorities in fulfilling some of their principal obligations under the European Convention for Human Rights. This document proposes how the meaning of the term may be given greater clarity, coherence and consistency.

    • Law

The Unity of Public Law


Author: David Dyzenhaus
Publisher: Hart Publishing
ISBN: 1841134341
Category: Law
Page: 496
View: 9784
This book tackles the important topic of the relationship between three parts of the public law regime in a common law jurisdiction: the common law of judicial review or the unwritten constitution, the written constitution and public international law. Thematic coherence is ensured by the fact that the papers were presented at a conference in early 2003 and then extensively revised, and by a general focus on a path-breaking decision of Canada's Supreme Court (Baker). The book thus contains a highly productive exchange between an international group of scholars on such themes as the rule of law, judicial deference, the separation of powers, the role of human rights in common law reasoning on immigration and security matters, and the nature of legal authority.