Proportionality Balancing And Constitutional Governance
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Proportionality Balancing And Constitutional Governance
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Author : Alec Stone Sweet
language : en
Publisher: Oxford University Press, USA
Release Date : 2019
Proportionality Balancing And Constitutional Governance written by Alec Stone Sweet and has been published by Oxford University Press, USA this book supported file pdf, txt, epub, kindle and other format this book has been release on 2019 with Law categories.
In this book, Alec Stone Sweet and Jud Mathews focus on the law and politics of rights protection in democracies, and in human rights regimes in Europe, the Americas, and Africa. After introducing the basic features of modern constitutions, with their emphasis on rights and judicial review, the authors present a theory of proportionality that explains why constitutional judges embraced it. Proportionality analysis is a highly intrusive mode of judicial supervision: it permits state officials to limit rights, but only when necessary to achieve a sufficiently important public interest. Since the 1950s, virtually every powerful domestic and international court has adopted proportionality analysis as the central method for protecting rights. In doing so, judges positioned themselves to review all important legislative and administrative decisions, and to invalidate them as unconstitutional when such policies fail the proportionality test. The result has been a massive - and global - transformation of law and politics. The book explicates the concepts of 'trusteeship', the 'system of constitutional justice', the 'effectiveness' of rights adjudication, and the 'zone of proportionality'. A wide range of case studies analyse: how proportionality has spread, and variation in how it is deployed; the extent to which the U.S. Supreme Court has evolved and resisted similar doctrines; the role of proportionality in building ongoing 'constitutional dialogues' with the other branches of government; and the importance of the principle to the courts of regional human rights regimes. While there is variance in the intensity of proportionality-based dialogues, such interactions are today at the very heart of governance in the modern constitutional state and beyond.
Proportionality Principles In American Law
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Author : E. Thomas Sullivan
language : en
Publisher: Oxford University Press
Release Date : 2009
Proportionality Principles In American Law written by E. Thomas Sullivan and has been published by Oxford University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2009 with Law categories.
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.
Balancing Constitutional Rights
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Author : Jacco Bomhoff
language : en
Publisher: Cambridge University Press
Release Date : 2013-12-19
Balancing Constitutional Rights written by Jacco Bomhoff and has been published by Cambridge University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2013-12-19 with Law categories.
A comparative and historical account of the origins and meanings of the discourse of judicial 'balancing' in constitutional rights law.
Proportionality In Action
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Author : Mordechai Kremnitzer
language : en
Publisher: Cambridge University Press
Release Date : 2020-04-30
Proportionality In Action written by Mordechai Kremnitzer and has been published by Cambridge University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2020-04-30 with Law categories.
A comparative and empirical analysis of proportionality in the case law of six constitutional and supreme courts.
Proportionality And The Rule Of Law
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Author : Grant Huscroft
language : en
Publisher: Cambridge University Press
Release Date : 2014-04-21
Proportionality And The Rule Of Law written by Grant Huscroft and has been published by Cambridge University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2014-04-21 with Law categories.
"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 SupremeCourt 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. Asa 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"--
Traditions And Transformations
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Author : Michaela Hailbronner
language : en
Publisher: Oxford University Press
Release Date : 2015
Traditions And Transformations written by Michaela Hailbronner and has been published by Oxford University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2015 with Law categories.
German constitutionalism has gained a central place in the global comparative debate, but what underpins it remains imperfectly understood. Its distinctive understanding of the rule of law and the widespread support for its powerful Constitutional Court are typically explains in one of two ways: either as a story of change in a reaction to National Socialism or as the continuation of an older nineteenth-century line of constitutional thought that emphasizes the function of constitutional law as a constraint on state power. But while both narratives account for some important features, their explanatory value is ultimately overrated. This book adopts a broader comparative perspective to understand the rise of the German Constitutional Court. It interprets the particular features of German constitutional jurisprudence and the Court's strength as a reconciliation of two different legal paradigms: first, a hierarchical legal culture as described by Mirjan Damaska, building on Max Weber, as opposed to a more co-coordinated understanding of legal authority such as prevails in the United States and secondly, a more recent paradigm of transformative constitutionalism, which is most often associated with countries like South Africa and India. Using post-war legal history and sociological and empirical research in addition to case law, this book demonstrates how German developments reflect the frequently conflicting demands of these two legal paradigms - yielding an idiosyncratic synthesis in Value Formalism, a specific type of constitutional reasoning, at once pragmatic, open, formalist, and technical. Value Formalism however, also comes with serious problems, such as a lack of self-reflection in the Court's jurisprudence and the closure of constitutional discourse towards laymen.
The Ultimate Rule Of Law
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Author : David M. Beatty
language : en
Publisher: Oxford University Press, USA
Release Date : 2004
The Ultimate Rule Of Law written by David M. Beatty and has been published by Oxford University Press, USA this book supported file pdf, txt, epub, kindle and other format this book has been release on 2004 with Law categories.
The Ultimate Rule of Law addresses the age-old tension between law and politics by examining whether the personal beliefs of judges come into play in adjudicating on issues of religious freedom, sex discrimination, and social and economic rights. Decisions by the Supreme Courts of India, Japan, Canada, the United States, Ireland, Israel, the Constitutional Courts of Germany, Hungary, South Africa, and the European Court of Human Rights on such controversial issues as government funding of religious schools, abortion, same sex marriages, women in the military, and rights to basic shelter and life saving medical treatment are evaluated and compared. 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. His 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. Controversially, Beatty concludes that although this method of judicial review originated in the United States, American judges generally appear to be far less inclined to this conception of constitutional adjudication than their counterparts in Europe, Africa, and Asia.
National Constitutions In European And Global Governance Democracy Rights The Rule Of Law
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Author : Anneli Albi
language : en
Publisher: Springer
Release Date : 2019-05-29
National Constitutions In European And Global Governance Democracy Rights The Rule Of Law written by Anneli Albi and has been published by Springer this book supported file pdf, txt, epub, kindle and other format this book has been release on 2019-05-29 with Law categories.
This two-volume book, published open access, brings together leading scholars of constitutional law from twenty-nine European countries to revisit the role of national constitutions at a time when decision-making has increasingly shifted to the European and transnational level. It offers important insights into three areas. First, it explores how constitutions reflect the transfer of powers from domestic to European and global institutions. Secondly, it revisits substantive constitutional values, such as the protection of constitutional rights, the rule of law, democratic participation and constitutional review, along with constitutional court judgments that tackle the protection of these rights and values in the transnational context, e.g. with regard to the Data Retention Directive, the European Arrest Warrant, the ESM Treaty, and EU and IMF austerity measures. The responsiveness of the ECJ regarding the above rights and values, along with the standard of protection, is also assessed. Thirdly, challenges in the context of global governance in relation to judicial review, democratic control and accountability are examined. On a broader level, the contributors were also invited to reflect on what has increasingly been described as the erosion or ‘twilight’ of constitutionalism, or a shift to a thin version of the rule of law, democracy and judicial review in the context of Europeanisation and globalisation processes. The national reports are complemented by a separately published comparative study, which identifies a number of broader trends and challenges that are shared across several Member States and warrant wider discussion. The research for this publication and the comparative study were carried out within the framework of the ERC-funded project ‘The Role and Future of National Constitutions in European and Global Governance’. The book is aimed at scholars, researchers, judges and legal advisors working on the interface between national constitutional law and EU and transnational law. The extradition cases are also of interest to scholars and practitioners in the field of criminal law. Anneli Albi is Professor of European Law at the University of Kent, United Kingdom. Samo Bardutzky is Assistant Professor of Constitutional Law at the University of Ljubljana, Slovenia.
Proportionality And Judicial Activism
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Author : Niels Petersen
language : en
Publisher: Cambridge University Press
Release Date : 2017-03-02
Proportionality And Judicial Activism written by Niels Petersen and has been published by Cambridge University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2017-03-02 with Law categories.
This book uses empirical analysis to show that courts refrain from using the proportionality test as a means of judicial activism.
A Cosmopolitan Legal Order
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Author : Alec Stone Sweet
language : en
Publisher: Oxford University Press
Release Date : 2018-05-01
A Cosmopolitan Legal Order written by Alec Stone Sweet and has been published by Oxford University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2018-05-01 with Law categories.
In this book, Stone Sweet and Ryan provide an accessible introduction to Kantian constitutional theory and the law and politics of European rights protection. Part I sets out Kant's blueprint for achieving Perpetual Peace and constitutional justice within and beyond the nation state. Part II applies these ideas to explain the gradual constitutionalization of a Cosmopolitan Legal Order: a transnational legal system in which justiciable rights are held by individuals; where public officials bear the obligation to fulfil the fundamental rights of all who come within the scope of their jurisdiction; and where domestic and transnational judges supervise how officials act. Such an order was instantiated in Europe through the combined effects of Protocol no. 11 (1998) to the ECHR and the incorporation of the Convention into national law. The authors then describe and assess the strengthening of the European Court's capacities to meet the challenge of chronic failures of protection at the domestic level; its progressive approach to the "qualified" rights covering privacy and family life, and the freedoms of expression, conscience, and religion; the robust enforcement of the "absolute" rights, including the prohibition of torture and inhuman treatment; and its determined efforts to render justice to all people that come under its jurisdiction, including non-citizens whose rights are violated beyond Europe. Today, the Strasbourg Court is the most active and important rights-protecting court in the world, its jurisprudence a catalyst for the construction of a cosmopolitan constitution in Europe and beyond.