A Critique Of Proportionality And Balancing

Author: Francisco Urbina
Publisher: Cambridge University Press
ISBN: 1107175062
Size: 20.15 MB
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This book offers a comprehensive critique of the principle of proportionality and balancing as applied to human and constitutional rights.

A Critique Of Proportionality And Balancing

Author: Francisco J. Urbina
Publisher: Cambridge University Press
ISBN: 9781316626818
Size: 66.64 MB
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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.

A Critique Of Proportionality And Balancing

Author: Francisco J. Urbina
Publisher: Cambridge University Press
ISBN: 1316802957
Size: 12.48 MB
Format: PDF
View: 2736
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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.

A Critique Of Proportionality And Balancing Introduction Part I 2 The Maximisation Account Of Proportionality 3 The Incommensurability Objection 4 Why Proportionality 5 Proportionality Rights And Legitimate Interests Part Ii 6 Proportionality As Unconstrained Moral Reasoning 7 The Need For Legal Direction In Adjudication 8 Proportionality And The Problems Of Legally Unaided Adjudication Part Iii 9 Legal Human Rights

Author: Francisco Javier Urbina Molfino
Publisher:
ISBN: 9781316809525
Size: 70.82 MB
Format: PDF, Docs
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"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"--

Proportionality And Constitutional Culture

Author: Moshe Cohen-Eliya
Publisher: Cambridge University Press
ISBN: 1107244757
Size: 14.38 MB
Format: PDF
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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.

The Constitutional Structure Of Proportionality

Author: Matthias Klatt
Publisher: Oxford University Press on Demand
ISBN: 0199662460
Size: 67.85 MB
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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.

Proportionality And Judicial Activism

Author: Niels Petersen
Publisher: Cambridge University Press
ISBN: 1107177987
Size: 42.55 MB
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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.

The Negotiable Constitution

Author: Grégoire C. N. Webber
Publisher: Cambridge University Press
ISBN: 0521111234
Size: 31.75 MB
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Grégoire C. N. Webber explores how open-ended constitutional rights leave a constitution open to re-negotiation by the political process.

Proportionality And The Rule Of Law

Author: Grant Huscroft
Publisher: Cambridge University Press
ISBN: 9781107647954
Size: 13.85 MB
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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.

Proportionality

Author: Vicki C. Jackson
Publisher: Cambridge University Press
ISBN: 1107165563
Size: 31.60 MB
Format: PDF, Mobi
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This book presents important new scholarship by leading figures in constitutional law on new challenges for proportionality doctrine.