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The Constitutional Structure Of Proportionality
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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 Oxford University Press on Demand. This book was released on 2012-07-19 with total page 203 pages. Available in PDF, EPUB and Kindle. Book excerpt: 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.
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.
Book Synopsis A Theory of Constitutional Rights by : Robert Alexy
Download or read book A Theory of Constitutional Rights written by Robert Alexy and published by . This book was released on 2010 with total page 518 pages. Available in PDF, EPUB and Kindle. Book excerpt: 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.
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.
Book Synopsis Courts, Politics and Constitutional Law by : Martin Belov
Download or read book Courts, Politics and Constitutional Law written by Martin Belov and published by Routledge. This book was released on 2019-10-16 with total page 189 pages. Available in PDF, EPUB and Kindle. Book excerpt: 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.
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.
Book Synopsis Proportionality Analysis and Models of Judicial Review by : Benedikt Pirker
Download or read book Proportionality Analysis and Models of Judicial Review written by Benedikt Pirker and published by . This book was released on 2013 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: 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)
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.
Book Synopsis The Negotiable Constitution by : Grégoire C. N. Webber
Download or read book The Negotiable Constitution written by Grégoire C. N. Webber and published by Cambridge University Press. This book was released on 2009-11-26 with total page 241 pages. Available in PDF, EPUB and Kindle. Book excerpt: 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.
Book Synopsis The Concept of Proportionality in Public Law by : CHUNG Wai Man, Franco
Download or read book The Concept of Proportionality in Public Law written by CHUNG Wai Man, Franco and published by City University of HK Press. This book was released on 2020-06-30 with total page 696 pages. Available in PDF, EPUB and Kindle. Book excerpt: Proportionality is a German, and thus continental European, concept in public law that is applied by both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). The principle specifies that measures adopted by executive authorities should not exceed the limits of what is appropriate and necessary in order to achieve legitimate objectives in the interest of the public. Using a functional comparative approach, this book evaluates the extent to which proportionality has been integrated into the English and Hong Kong judicial systems by comparing case law in these courts with that of the CJEU and the ECtHR. The text also reviews the development of proportionality and presents a topical understanding of why its adoption and application have encountered difficulties, particularly regarding socio-economic rights, in some jurisdictions, such as the United Kingdom and Hong Kong. Written by a scholar with experience from both within the Hong Kong judicial system and from international research, this book is the first all-encompassing reference for legal practitioners worldwide.
Book Synopsis The Global Model of Constitutional Rights by : Kai Möller
Download or read book The Global Model of Constitutional Rights written by Kai Möller and published by Oxford University Press. This book was released on 2012-10-25 with total page 239 pages. Available in PDF, EPUB and Kindle. Book excerpt: 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.
Book Synopsis The Oxford Handbook of Comparative Constitutional Law by : Michel Rosenfeld
Download or read book The Oxford Handbook of Comparative Constitutional Law written by Michel Rosenfeld and published by OUP Oxford. This book was released on 2012-05-17 with total page 1416 pages. Available in PDF, EPUB and Kindle. Book excerpt: The field of comparative constitutional law has grown immensely over the past couple of decades. Once a minor and obscure adjunct to the field of domestic constitutional law, comparative constitutional law has now moved front and centre. Driven by the global spread of democratic government and the expansion of international human rights law, the prominence and visibility of the field, among judges, politicians, and scholars has grown exponentially. Even in the United States, where domestic constitutional exclusivism has traditionally held a firm grip, use of comparative constitutional materials has become the subject of a lively and much publicized controversy among various justices of the U.S. Supreme Court. The trend towards harmonization and international borrowing has been controversial. Whereas it seems fair to assume that there ought to be great convergence among industrialized democracies over the uses and functions of commercial contracts, that seems far from the case in constitutional law. Can a parliamentary democracy be compared to a presidential one? A federal republic to a unitary one? Moreover, what about differences in ideology or national identity? Can constitutional rights deployed in a libertarian context be profitably compared to those at work in a social welfare context? Is it perilous to compare minority rights in a multi-ethnic state to those in its ethnically homogeneous counterparts? These controversies form the background to the field of comparative constitutional law, challenging not only legal scholars, but also those in other fields, such as philosophy and political theory. Providing the first single-volume, comprehensive reference resource, the 'Oxford Handbook of Comparative Constitutional Law' will be an essential road map to the field for all those working within it, or encountering it for the first time. Leading experts in the field examine the history and methodology of the discipline, the central concepts of constitutional law, constitutional processes, and institutions - from legislative reform to judicial interpretation, rights, and emerging trends.
Book Synopsis Proportionality in Law by : David Duarte
Download or read book Proportionality in Law written by David Duarte and published by Springer. This book was released on 2018-07-09 with total page 200 pages. Available in PDF, EPUB and Kindle. Book excerpt: 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.
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: With contributions from leading scholars in constitutional law, this volume examines how carefully designed and limited doctrines of proportionality can improve judicial decision-making, how it is applied in different jurisdictions, its role on constitutionalism outside the courts, and whether the principle of proportionality actually advances or detracts from democracy. Contributions from some of the seminal thinkers on the development of scholarship on proportionality (e.g. Alexy, Barak, and Beatty) extend their prior work and engage in an important dialogue on the topic. Some offer substantial critiques, others defend the doctrine and offer important clarifications and extensions of their prior work. Throughout, the authors engage not only with case law from around the world but also with existing scholarly treatments of the subject. Mathematical treatments are avoided, making the book accessible to readers from both 'soft' and hard' social science backgrounds.
Book Synopsis The Ultimate Rule of Law by : David M. Beatty
Download or read book The Ultimate Rule of Law written by David M. Beatty and published by Oxford University Press, USA. This book was released on 2004 with total page 228 pages. Available in PDF, EPUB and Kindle. Book excerpt: 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.
Book Synopsis Encyclopedia of Law and Economics by : Jürgen Georg Backhaus
Download or read book Encyclopedia of Law and Economics written by Jürgen Georg Backhaus and published by Springer. This book was released on 2018-02-15 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: 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
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.
