Proportionality Balancing And Constitutional Governance

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Proportionality Balancing and Constitutional Governance

Author : Alec Stone Sweet
Publisher : Oxford University Press, USA
ISBN 13 : 0198841396
Total Pages : 249 pages
Book Rating : 4.1/5 (988 download)

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Book Synopsis Proportionality Balancing and Constitutional Governance by : Alec Stone Sweet

Download or read book Proportionality Balancing and Constitutional Governance written by Alec Stone Sweet and published by Oxford University Press, USA. This book was released on 2019 with total page 249 pages. Available in PDF, EPUB and Kindle. Book excerpt: 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

Author : E. Thomas Sullivan
Publisher : Oxford University Press
ISBN 13 : 0195324935
Total Pages : 297 pages
Book Rating : 4.1/5 (953 download)

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Book Synopsis Proportionality Principles in American Law by : E. Thomas Sullivan

Download or read book Proportionality Principles in American Law written by E. Thomas Sullivan and published by Oxford University Press. This book was released on 2009 with total page 297 pages. Available in PDF, EPUB and Kindle. Book excerpt: 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, Balancing, and Rights

Author : Jan-R. Sieckmann
Publisher : Springer Nature
ISBN 13 : 3030773213
Total Pages : 255 pages
Book Rating : 4.0/5 (37 download)

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Book Synopsis Proportionality, Balancing, and Rights by : Jan-R. Sieckmann

Download or read book Proportionality, Balancing, and Rights written by Jan-R. Sieckmann and published by Springer Nature. This book was released on with total page 255 pages. Available in PDF, EPUB and Kindle. Book excerpt: 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 Balancing and Constitutional Governance

Author : Alec Stone Sweet
Publisher : Oxford University Press
ISBN 13 : 0192578375
Total Pages : 248 pages
Book Rating : 4.1/5 (925 download)

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Book Synopsis Proportionality Balancing and Constitutional Governance by : Alec Stone Sweet

Download or read book Proportionality Balancing and Constitutional Governance written by Alec Stone Sweet and published by Oxford University Press. This book was released on 2019-05-16 with total page 248 pages. Available in PDF, EPUB and Kindle. Book excerpt: 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.

A Critique of Proportionality and Balancing

Author : Francisco J. Urbina
Publisher : Cambridge University Press
ISBN 13 : 1107175062
Total Pages : 289 pages
Book Rating : 4.1/5 (71 download)

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Book Synopsis A Critique of Proportionality and Balancing by : Francisco J. Urbina

Download or read book A Critique of Proportionality and Balancing written by Francisco J. Urbina and published by Cambridge University Press. This book was released on 2017 with total page 289 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book offers a comprehensive critique of the principle of proportionality and balancing as applied to human and constitutional rights.

Balancing Constitutional Rights

Author : Jacco Bomhoff
Publisher : Cambridge University Press
ISBN 13 : 1107044413
Total Pages : 289 pages
Book Rating : 4.1/5 (7 download)

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Book Synopsis Balancing Constitutional Rights by : Jacco Bomhoff

Download or read book Balancing Constitutional Rights written by Jacco Bomhoff and published by Cambridge University Press. This book was released on 2013-12-19 with total page 289 pages. Available in PDF, EPUB and Kindle. Book excerpt: A comparative and historical account of the origins and meanings of the discourse of judicial 'balancing' in constitutional rights law.

The Constitutional Balance

Author : John Laws
Publisher : Bloomsbury Publishing
ISBN 13 : 1509935479
Total Pages : 144 pages
Book Rating : 4.5/5 (99 download)

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Book Synopsis The Constitutional Balance by : John Laws

Download or read book The Constitutional Balance written by John Laws and published by Bloomsbury Publishing. This book was released on 2021-01-28 with total page 144 pages. Available in PDF, EPUB and Kindle. Book excerpt: In The Constitutional Balance Sir John Laws has left a vivid and timely commentary on one of the most pressing issues in the legal world today. The debate continues whether or not judges venture too far into issues of Government policy, and whether or not there are any limits on the power of the executive and the legislature to propose and enact legislation that unduly restricts fundamental freedoms in a democratic society subject to the rule of law. Sir John Laws examines the relationship between constitutional fundamentals and values. He finds basic ideals of reason, fairness and the presumption of liberty in the common law, and recognises that a democratically accountable executive and legislature must be able to make policy and enact and implement legislation to pursue social goals. The courts then interpret the laws. As Sir John puts it – “The meeting of Parliament and the common law, in the crucible of statutory interpretation, is close to the core of [the constitutional balance]”. These fundamental values can compete with each other, giving rise to tensions within and between key state institutions, in particular the executive and the judiciary. A 'constitutional balance' between them must be found if the constitution is to function properly, each institution is to understand the proper extent and limits of its authority, and the rule of law is to be maintained. Sir John draws on his life-long experience as a barrister, judge and academic, and on case-law and learning, to explain in vibrant and engaging terms how such a 'constitutional balance' might be achieved.

Proportionality and Constitutional Culture

Author : Moshe Cohen-Eliya
Publisher : Cambridge University Press
ISBN 13 : 1107244757
Total Pages : 183 pages
Book Rating : 4.1/5 (72 download)

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Book Synopsis Proportionality and Constitutional Culture by : Moshe Cohen-Eliya

Download or read book Proportionality and Constitutional Culture written by Moshe Cohen-Eliya and published by Cambridge University Press. This book was released on 2013-06-13 with total page 183 pages. Available in PDF, EPUB and Kindle. Book excerpt: 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.

Proportionality

Author : Vicki C. Jackson
Publisher : Cambridge University Press
ISBN 13 : 1107165563
Total Pages : 353 pages
Book Rating : 4.1/5 (71 download)

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Book Synopsis Proportionality by : Vicki C. Jackson

Download or read book Proportionality written by Vicki C. Jackson and published by Cambridge University Press. This book was released on 2017-09-21 with total page 353 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book presents important new scholarship by leading figures in constitutional law on new challenges for proportionality doctrine.

The Constitutional Structure of Proportionality

Author : Matthias Klatt
Publisher : OUP Oxford
ISBN 13 : 0191639923
Total Pages : 204 pages
Book Rating : 4.1/5 (916 download)

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Book Synopsis The Constitutional Structure of Proportionality by : Matthias Klatt

Download or read book The Constitutional Structure of Proportionality written by Matthias Klatt and published by OUP Oxford. This book was released on 2012-07-19 with total page 204 pages. Available in PDF, EPUB and Kindle. Book excerpt: 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.

Proportionality in Action

Author : Mordechai Kremnitzer
Publisher : Cambridge University Press
ISBN 13 : 1108497586
Total Pages : 689 pages
Book Rating : 4.1/5 (84 download)

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Book Synopsis Proportionality in Action by : Mordechai Kremnitzer

Download or read book Proportionality in Action written by Mordechai Kremnitzer and published by Cambridge University Press. This book was released on 2020-04-30 with total page 689 pages. Available in PDF, EPUB and Kindle. Book excerpt: A comparative and empirical analysis of proportionality in the case law of six constitutional and supreme courts.

Traditions and Transformations

Author : Michaela Hailbronner
Publisher : Oxford University Press
ISBN 13 : 0191054380
Total Pages : 267 pages
Book Rating : 4.1/5 (91 download)

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Book Synopsis Traditions and Transformations by : Michaela Hailbronner

Download or read book Traditions and Transformations written by Michaela Hailbronner and published by Oxford University Press. This book was released on 2015-10-29 with total page 267 pages. Available in PDF, EPUB and Kindle. Book excerpt: German constitutionalism has gained a central place in the global comparative debate, but what underpins it remains imperfectly understood. Its distinctive conception of the rule of law and the widespread support for its powerful Constitutional Court are typically explained in one of two ways: as a story of change in 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-ordinate understanding of legal authority such as prevails in the United States, and secondly, the turn towards a transformative understanding of constitutionalism, as it is today most often associated with countries such as South Africa and India. Using post-war legal history and sociological and empirical research in addition to case law, this book demonstrates how German constitutionalism has harmonized the frequently conflicting demands of these two legal paradigms, resulting in a distinctive type of constitutional reasoning, at once open, pragmatic, formalist, and technical, which this book labels Value Formalism. Value Formalism, however, also comes with serious drawbacks, such as a lack of institutional self-reflection in the Court's jurisprudence and a closure of constitutional discourse to laymen, whom it excludes from the realm of legitimate interpreters.

Comparative Constitutional Law

Author : Tom Ginsburg
Publisher : Edward Elgar Publishing
ISBN 13 : 0857931210
Total Pages : 681 pages
Book Rating : 4.8/5 (579 download)

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Book Synopsis Comparative Constitutional Law by : Tom Ginsburg

Download or read book Comparative Constitutional Law written by Tom Ginsburg and published by Edward Elgar Publishing. This book was released on 2011-01-01 with total page 681 pages. Available in PDF, EPUB and Kindle. Book excerpt: This landmark volume of specially commissioned, original contributions by top international scholars organizes the issues and controversies of the rich and rapidly maturing field of comparative constitutional law. Divided into sections on constitutional design and redesign, identity, structure, individual rights and state duties, courts and constitutional interpretation, this comprehensive volume covers over 100 countries as well as a range of approaches to the boundaries of constitutional law. While some chapters reference the text of legal instruments expressly labeled constitutional, others focus on the idea of entrenchment or take a more functional approach. Challenging the current boundaries of the field, the contributors offer diverse perspectives - cultural, historical and institutional - as well as suggestions for future research. A unique and enlightening volume, Comparative Constitutional Law is an essential resource for students and scholars of the subject.

Proportionality, Fundamental Rights and Balance of Powers

Author : Davor Šušnjar
Publisher : BRILL
ISBN 13 : 9004189661
Total Pages : 424 pages
Book Rating : 4.0/5 (41 download)

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Book Synopsis Proportionality, Fundamental Rights and Balance of Powers by : Davor Šušnjar

Download or read book Proportionality, Fundamental Rights and Balance of Powers written by Davor Šušnjar and published by BRILL. This book was released on 2010-03-08 with total page 424 pages. Available in PDF, EPUB and Kindle. Book excerpt: The ECJ has applied fundamental rights and the principle of proportionality for decades. This book tries to elucidate the Court's approach to these fundamental tenets of Community law. It starts with establishing a firm theoretical foundation. Then, the book analyzes the case law of the ECJ and other constitutional courts to find out which method courts actually apply. Next, it is discussed why the courts follow a particular approach. Then, it is considered whether the approach fulfils constitutional requirements. Finally, a rationalizing model of balancing is developed. The book is useful for the practitioner as well as for the researcher. It does not present a mere summary of the Court's case law but a systematization of the underlying rationales.

Proportionality and the Rule of Law

Author : Grant Huscroft
Publisher : Cambridge University Press
ISBN 13 : 1139952870
Total Pages : 433 pages
Book Rating : 4.1/5 (399 download)

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Book Synopsis Proportionality and the Rule of Law by : Grant Huscroft

Download or read book Proportionality and the Rule of Law written by Grant Huscroft and published by Cambridge University Press. This book was released on 2014-04-21 with total page 433 pages. Available in PDF, EPUB and Kindle. Book excerpt: 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.

National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law

Author : Anneli Albi
Publisher : Springer
ISBN 13 : 9462652732
Total Pages : 1522 pages
Book Rating : 4.4/5 (626 download)

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Book Synopsis National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law by : Anneli Albi

Download or read book National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law written by Anneli Albi and published by Springer. This book was released on 2019-05-29 with total page 1522 pages. Available in PDF, EPUB and Kindle. Book excerpt: 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 in EU Digital Law

Author : Jan Czarnocki
Publisher : Bloomsbury Publishing
ISBN 13 : 1509974520
Total Pages : 351 pages
Book Rating : 4.5/5 (99 download)

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Book Synopsis Proportionality in EU Digital Law by : Jan Czarnocki

Download or read book Proportionality in EU Digital Law written by Jan Czarnocki and published by Bloomsbury Publishing. This book was released on 2024-10-03 with total page 351 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book addresses the interplay between the proportionality principle and EU digital law. Does EU digital law provide a fair balance of rights and interests? How does proportionality limit legislation in the digital economy? How can it be used to balance competing rights and interests? Diving into the dialectics of law and technology, the book analyses the relevance of the proportionality principle in regulating the digital world and as a vital tool for balancing competing rights and interests. The chapters analyse how conflicting rights and interests are resolved in EU digital law through the proportionality principle and critically reflect on its application. They scrutinise recent EU regulatory initiatives such as the GDPR, AI Act, Copyright Directive, DSA, and more. They reflect on the unique context of AI systems regulation, digital marketing, and data protection, illuminating the application and impact of proportionality in these arenas. Providing an in-depth examination of legal actors and real-life conflicts resolved by applying EU digital law, the book explains the pivotal role of the principle of proportionality in achieving an optimal balance of rights in our digital era.