The Constitutional Structure Of Proportionality

Author : Matthias Klatt,Moritz Meister
Publisher : OUP Oxford
Page : 204 pages
File Size : 52,7 Mb
Release : 2012-07-19
Category : Law
ISBN : 9780191639920

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The Constitutional Structure of Proportionality by Matthias Klatt,Moritz Meister Pdf

As constitutional law globalizes, the quest for a common grammar or 'generic constitutional law' becomes more pressing. Proportionality is one of the most prominent and controversial components of the modern, global constitutional discourse. In view of the alarming tension between the triumphant success of proportionality and the severity of the criticism directed towards it, this book offers an in-depth analysis of the critics of proportionality and demonstrates that their objections against the proportionality test are not convincing. It clarifies and further develops the current theories of proportionality and balancing. Building upon on Robert Alexy's predominant principles theory, the book suggests several modifications to this theory. Drawing examples from the case law of the European Court of Human Rights, the European Court of Justice, and various national constitutional courts it illustrates the argument in favour of proportionality and demonstrates its relevance for deciding concrete cases.

Author : Robert Alexy
Publisher : Unknown
Page : 518 pages
File Size : 54,8 Mb
Release : 2010
Category : Law
ISBN : 9780199584239

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A Theory of Constitutional Rights by Robert Alexy Pdf

In any country where there is a Bill of Rights, constitutional rights reasoning is an important part of the legal process. As more and more countries adopt Human Rights legislation and accede to international human rights agreements, and as the European Union introduces its own Bill of Rights, judges struggle to implement these rights consistently and sometimes the reasoning behind them is lost. Examining the practice in other jurisdictions can be a valuable guide. Robert Alexy's classic work reconstructs the reasoning behind the jurisprudence of the German Basic Law and in doing so provides a theory of general application to all jurisdictions where judges wrestle with rights adjudication. In considering the features of constitutional rights reasoning, the author moves from the doctrine of proportionality, procedural rights and the structure and scope of constitutional rights, to general rights of liberty and equality and the problem of horizontal effect. A postscript written for the English edition considers critiques of the Theory since it first appeared in 1985, focusing in particular on the discretion left to legislatures and in an extended introduction the translator argues that the theory may be used to clarify the nature of legal reasoning in the context of rights under the British Constitution.

Author : Mordechai Kremnitzer,Talya Steiner,Andrej Lang
Publisher : Cambridge University Press
Page : 689 pages
File Size : 41,8 Mb
Release : 2020-04-30
Category : Law
ISBN : 9781108497589

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Proportionality in Action by Mordechai Kremnitzer,Talya Steiner,Andrej Lang Pdf

A comparative and empirical analysis of proportionality in the case law of six constitutional and supreme courts.

Author : David Duarte,Jorge Silva Sampaio
Publisher : Springer
Page : 192 pages
File Size : 41,9 Mb
Release : 2018-07-30
Category : Law
ISBN : 9783319896472

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Proportionality in Law by David Duarte,Jorge Silva Sampaio Pdf

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.

Author : E. Thomas Sullivan,Richard S. Frase
Publisher : Oxford University Press
Page : 296 pages
File Size : 49,6 Mb
Release : 2008-12-05
Category : Law
ISBN : 9780199886692

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Proportionality Principles in American Law by E. Thomas Sullivan,Richard S. Frase Pdf

From the ancient origins of Just War doctrine to utilitarian and retributive theories of punishment, concepts of proportionality have long been an instrumental part of the rule of law and an essential check on government power. These concepts all embody the fundamental value that government and private actions should not be demonstrably excessive relative to their moral and practical justifications. In the American legal system, despite frequent though unacknowledged use of proportionality principles, there is no general theory of what permits courts to invalidate intrusive measures. In Proportionality Principles in American Law, two renowned legal scholars seek to advance such a theory. They argue that standards of review should be more clearly and precisely defined, and that in most circumstances every intrusive government measure which limits or threatens individual rights should undergo some degree of proportionality review. Across a wide range of legal contexts, E. Thomas Sullivan and Richard S. Frase identify three basic ways that government measures and private remedies have been found to be disproportionate: relative to fault; relative to alternative means of achieving the same practical purposes; and relative to the likely practical benefits of the measure or remedy. Using this structure, the book examines the origins and contemporary uses of proportionality principles in public law, civil liberties, and the criminal justice system, emphasizing the utility of proportionality principles to guide judicial review of excessive government measures. By constructing a new framework and a general theory for constitutional judicial review, Proportionality Principles in American Law will help courts more consistently and effectively apply proportionality principles to better serve their vital roles as guardians of individual rights and liberties.

Author : Martin Belov
Publisher : Routledge
Page : 201 pages
File Size : 48,8 Mb
Release : 2019-10-16
Category : Law
ISBN : 9781000707977

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Courts, Politics and Constitutional Law by Martin Belov Pdf

This book examines how the judicialization of politics, and the politicization of courts, affect representative democracy, rule of law, and separation of powers. This volume critically assesses the phenomena of judicialization of politics and politicization of the judiciary. It explores the rising impact of courts on key constitutional principles, such as democracy and separation of powers, which is paralleled by increasing criticism of this influence from both liberal and illiberal perspectives. The book also addresses the challenges to rule of law as a principle, preconditioned on independent and powerful courts, which are triggered by both democratic backsliding and the mushrooming of populist constitutionalism and illiberal constitutional regimes. Presenting a wide range of case studies, the book will be a valuable resource for students and academics in constitutional law and political science seeking to understand the increasingly complex relationships between the judiciary, executive and legislature.

Author : Shipra Chordia
Publisher : Unknown
Page : 128 pages
File Size : 54,9 Mb
Release : 2020-08-04
Category : Electronic
ISBN : 176002242X

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Proportionality in Australian Constitutional Law by Shipra Chordia Pdf

Author : Vicki C. Jackson,Mark Tushnet
Publisher : Cambridge University Press
Page : 353 pages
File Size : 49,6 Mb
Release : 2017-09-21
Category : Law
ISBN : 9781107165564

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Proportionality by Vicki C. Jackson,Mark Tushnet Pdf

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

Author : Grant Huscroft,Bradley W. Miller,Grégoire Webber
Publisher : Cambridge University Press
Page : 433 pages
File Size : 49,5 Mb
Release : 2014-04-21
Category : Law
ISBN : 9781107064072

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Proportionality and the Rule of Law by Grant Huscroft,Bradley W. Miller,Grégoire Webber Pdf

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

Author : Kai Möller
Publisher : Oxford University Press
Page : 239 pages
File Size : 48,9 Mb
Release : 2012-10-25
Category : Law
ISBN : 9780199664603

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The Global Model of Constitutional Rights by Kai Möller Pdf

The rapid spread of judicially-enforced constitutional rights has been one of the most dramatic developments in modern law. This book argues that there is now a global model for how such rights should function, and develops an original, philosophically grounded, account of their nature and scope.

Author : Dinah Shelton
Publisher : OUP Oxford
Page : 1088 pages
File Size : 42,6 Mb
Release : 2013-10-24
Category : Law
ISBN : 9780191668975

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The Oxford Handbook of International Human Rights Law by Dinah Shelton Pdf

The Oxford Handbook of International Human Rights Law provides a comprehensive and original overview of one of the fundamental topics within international law. It contains substantial new essays by more than forty leading experts in the field, giving students, scholars, and practitioners a complete overview of the issues that inform research, as well as a 'map' of the debates that animate the field. Each chapter features a critical and up-to-date analysis of the current state of debate and discussion, assessing recent work and advancing the understanding of all aspects of this developing area of international law. The Handbook consists of 39 chapters, divided into seven parts. Parts I and II explore the foundational theories and the historical antecedents of human rights law from a diverse set of disciplines, including the philosophical, religious, biological, and psychological origins of moral development and altruism, and sociological findings about cooperation and conflict. Part III focuses on the law-making process and categories of rights. Parts IV and V examine the normative and institutional evolution of human rights, and discuss this impact on various doctrines of general international law. The final two parts are more speculative, examining whether there is an advantage to considering major social problems from a human rights perspective and, if so, how that might be done: Part VI analyses current problems that are being addressed by governments, both domestically and through international organizations, and issues that have been placed on the human rights agenda of the United Nations, such as state responsibility for human rights violations and economic sanctions to enforce human rights; Part VII then evaluates the impact of international human rights law over the past six decades from a variety of perspectives. The Handbook is an invaluable resource for scholars, students, and practitioners of international human rights law. It provides the reader with new perspectives on international human rights law that are both multidisciplinary and geographically and culturally diverse.

Author : Matthias Klatt,Moritz Meister
Publisher : Oxford University Press on Demand
Page : 203 pages
File Size : 50,9 Mb
Release : 2012-07-19
Category : Law
ISBN : 9780199662463

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The Constitutional Structure of Proportionality by Matthias Klatt,Moritz Meister Pdf

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.

Author : Benedikt Pirker
Publisher : Unknown
Page : 0 pages
File Size : 51,9 Mb
Release : 2013
Category : Judicial review
ISBN : 9089521410

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Proportionality Analysis and Models of Judicial Review by Benedikt Pirker Pdf

Proportionality analysis describes a particular legal technique of resolving conflicts between human rights or constitutional rights and public interests through a process of balancing. However, as a general tendency, the current vivid academic debate on proportionality pays insufficient attention to the institutional context - the question of judicial review. Based on the premise that proportionality analysis is a permissible approach to resolve conflicts between rights and other interests, this book lays out a strategy for courts and tribunals to deal with the challenge of using proportionality analysis in an adequate manner, taking into account their situation and context of judicial review. For this purpose, the book develops the concept of models of judicial review in a first theoretical chapter. These models are then applied to six comparative case studies in German and US constitutional law, the law of the European Convention on Human Rights, European Union law, World Trade Organization law, and international investment law. (Series: European Administrative Law - Vol. 8)

Author : Jürgen Georg Backhaus
Publisher : Springer
Page : 0 pages
File Size : 45,7 Mb
Release : 2018-02-15
Category : Business & Economics
ISBN : 1461477522

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Encyclopedia of Law and Economics by Jürgen Georg Backhaus Pdf

Law and Economics deals with the economic analysis of legal relations, legal provisions, laws and regulations and is a research field which has a long tradition in economics. It was lost after the expulsion of some of the leading economists from Germany during 1933 to 1938, but then revived in Chicago. Both the subject of Law of Economics and the need for a concise Encyclopedia is particularly relevant in Europe today. Currently in the European Union there are several different legal cultures: the Anglo-Saxon legal framework, the German legal framework, which for example also includes Greece, and the Roman legal family—three jurisdictions which have to be covered with one and the same theory. In the EU, the task of the European Commission to interact with the various European jurisdictions means different legal cultures collaborating and some degree of harmonization is necessary. The result is an immediate need, if only for the science, to show how a given problem is solved in each legal tradition and jurisdiction. This Encyclopedia provides both a common language and precise definitions in the field, which will be useful in the future to avoid misunderstandings during harmonization of EU Law

Author : Ester Herlin-Karnell
Publisher : Bloomsbury Publishing
Page : 234 pages
File Size : 42,6 Mb
Release : 2019-04-18
Category : Law
ISBN : 9781509912506

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The Constitutional Structure of Europe’s Area of ‘Freedom, Security and Justice’ and the Right to Justification by Ester Herlin-Karnell Pdf

This book explores the implications of freedom as a non-domination-oriented view for understanding EU security regulation and its constitutional implications. At a time when the European borders are under pressure and with the refugee and migration crisis, which escalated in 2015, the idea of exploring a constitutional theory for the 'Area of Freedom, Security and Justice' (AFSJ) might seem to be a utopian project. This appears especially true in the light of the increased threat of terrorism in Europe (and on a global scale) and where the expanding EU security agenda is often advanced through the administrative law path, in contrast to the constitutional trajectory. Add to this the prolonged financial crisis, which continues to cast a long shadow on the future development of EU integration, and which suggests that Europe needs to 're-invent itself' beyond the sphere of economics. Therefore, it is precisely because of the current uncertainties regarding the progress of the EU and the constitutional law project that a constitutional take on the AFSJ is of particular importance. The book investigates the meaning of non-domination and the idea of justice and justification in the area of EU security regulation. In doing so, it focuses on the development of an AFSJ, what it means, and why it represents a fascinating example of contemporary constitutional law with interacting layers of security regulation, human rights law and transnational legal theory at its core.