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A Critique of Proportionality and Balancing

A Critique of Proportionality and Balancing Author Francisco Urbina
ISBN-10 9781107175068
Release 2017-01-26
Pages 288
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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 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

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
ISBN-10 1316809528
Release 2017
Pages
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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 the Rule of Law

Proportionality and the Rule of Law Author Grant Huscroft
ISBN-10 9781139952873
Release 2014-04-21
Pages
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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 and Constitutional Culture

Proportionality and Constitutional Culture Author Moshe Cohen-Eliya
ISBN-10 9781107244757
Release 2013-06-13
Pages
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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

The Constitutional Structure of Proportionality Author Matthias Klatt
ISBN-10 9780199662463
Release 2012-07-19
Pages 184
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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

Proportionality and Judicial Activism Author Niels Petersen
ISBN-10 9781107177987
Release 2017-03-02
Pages 258
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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.



Reasoning Rights

Reasoning Rights Author Liora Lazarus
ISBN-10 9781782252344
Release 2014-12-01
Pages 382
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This book is about judicial reasoning in human rights cases. The aim is to explore the question: how is it that notionally universal norms are reasoned by courts in such significantly different ways? What is the shape of this reasoning; which techniques are common across the transnational jurisprudence; and which are particular? The book, comprising contributions by a team of world-leading human rights scholars, moves beyond simply addressing the institutional questions concerning courts and human rights, which often dominate discussions of this kind, seeking instead a deeper examination of the similarities and divergence of reasonings by different courts when addressing comparable human rights questions. These differences, while partly influenced by institutional concerns, cannot be attributed to them alone. This book explores the diverse and rich underlying spectrum of human rights reasoning, as a distinctive and particular form of legal reasoning, evident in the case studies across the selected jurisdictions.



Ethics of Human Rights

Ethics of Human Rights Author A. Reis Monteiro
ISBN-10 9783319035666
Release 2014-03-11
Pages 540
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This volume focuses on the ethical significance of human rights, aiming at contributing to a universal culture of human rights with deep roots and wide horizons. Its purpose, scope and rationale are reflected in the three-part structure of the manuscript. Part I has a broad introductory historical, theoretical and legal character. Part II submits that an Ethics of Human Rights is best understood as an Ethics of Recognition of human worth, dignity and rights. Moreover, it is argued that human worth consists in the perfectibility of the human species, rooted in its semiotic nature, to be accomplished through the perfecting of human beings, for which the right to education is key. In Part III, the main legal and political outcomes of the Human Rights Revolution are described and answers to the most lasting and common criticisms of human rights are provided. To conclude, the human stature of the Big Five drafters of the Universal Declaration of Human Rights is profiled and the priority that should be recognized to human rights education is highlighted. Some appendices supplement the manuscript. While making a case for the high value and liberating power of the idea and ideal of human rights, objections, controversies and uncertainties are not at all overlooked and emerging issues are explored. The diversity of content of this volume meets many needs of the typical syllabus for a human rights course.



Proportionality and Deference in Investor State Arbitration

Proportionality and Deference in Investor State Arbitration Author Caroline Henckels
ISBN-10 9781316432303
Release 2015-10-15
Pages
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In this study, Caroline Henckels examines how investment tribunals have balanced the competing interests of host states and foreign investors in determining state liability in disputes concerning the exercise of public power. Analyzing the concepts of proportionality and deference in investment tribunals' decision-making in comparative perspective, the book proposes a new methodology for investment tribunals to adopt in regulatory disputes, which combines proportionality analysis with an institutionally sensitive approach to the standard of review. Henckels argues that adopting a modified form of proportionality analysis would provide a means for tribunals to decide cases in a more consistent and coherent manner leading to greater certainty for both states and investors, and that affording due deference to host states in the determination of liability would address the concern that the decisions of investment tribunals unjustifiably impact on the regulatory autonomy of states.



Proportionality

Proportionality Author Vicki C. Jackson
ISBN-10 9781107165564
Release 2017-09-21
Pages 356
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This book presents important new scholarship by leading figures in constitutional law on new challenges for proportionality doctrine.



The Negotiable Constitution

The Negotiable Constitution Author Grégoire C. N. Webber
ISBN-10 9781139483735
Release 2009-11-26
Pages
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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.



A Critique of Proportionality Balancing as a Harmonization Technique in International Law

A Critique of Proportionality Balancing as a Harmonization Technique in International Law Author Sué González Hauck
ISBN-10 OCLC:1005526516
Release 2015
Pages
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A Critique of Proportionality Balancing as a Harmonization Technique in International Law has been writing in one form or another for most of life. You can find so many inspiration from A Critique of Proportionality Balancing as a Harmonization Technique in International Law also informative, and entertaining. Click DOWNLOAD or Read Online button to get full A Critique of Proportionality Balancing as a Harmonization Technique in International Law book for free.



Balancing Constitutional Rights

Balancing Constitutional Rights Author Jacco Bomhoff
ISBN-10 9781107044418
Release 2013-12-19
Pages 280
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A comparative and historical account of the origins and meanings of the discourse of judicial 'balancing' in constitutional rights law.



The Constitutional Protection of Capitalism

The Constitutional Protection of Capitalism Author Danny Nicol
ISBN-10 9781847315595
Release 2010-01-29
Pages 220
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In 1945 a Labour government deployed Britain's national autonomy and parliamentary sovereignty to nationalise key industries and services such as coal, rail, gas and electricity, and to establish a publicly-owned National Health Service. This monograph argues that constitutional constraints stemming from economic and legal globalisation would now preclude such a programme. It contends that whilst no state has ever, or could ever, possess complete freedom of action, nonetheless the rise of the transnational corporation means that national autonomy is now siginificantly restricted. The book focuses in particular on the way in which these economic constraints have been nurtured, reinforced and legitimised by the creation on the part of world leaders of a globalised constitutional law of trade and competition. This has been brought into existence by the adoption of effective enforcement machinery, sometimes embedded within the nation states, sometimes formed at transnational level. With Britain enmeshed in supranational economic and legal structures from which it is difficult to extricate itself, the British polity no longer enjoys the range and freedom of policymaking once open to it. Transnational legal obligations constitute not just law but in effect a de facto supreme law entrenching a predominantly neoliberal political settlement in which the freedom of the individual is identified with the freedom of the market. The book analyses the key provisions of WTO, EU and ECHR law which provide constitutional protection for private enterprise. It dwells on the law of services liberalisation, public monopolies, state aid, public procurement and the fundamental right of property ownership, arguing that the new constitutional order compromises the traditional ideals of British democracy.



Proportionality

Proportionality Author Aharon Barak
ISBN-10 1107401194
Release 2012-01-19
Pages 638
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Having identified proportionality as the main tool for limiting constitutional rights, Aharon Barak explores its four components (proper purpose, rational connection, necessity and proportionality stricto sensu) and discusses the relationships between proportionality and reasonableness and between courts and legislation. He goes on to analyse the concept of deference and to consider the main arguments against the use of proportionality (incommensurability and irrationality). Alternatives to proportionality are compared and future developments of proportionality are suggested.



Patriarchal Religion Sexuality and Gender

Patriarchal Religion  Sexuality  and Gender Author Nicholas Bamforth
ISBN-10 9781139466301
Release 2007-11-19
Pages
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Legal theorists are familiar with John Finnis's book Natural Law and Natural Rights, but usually overlook his interventions in US constitutional debates and his membership of a group of conservative Catholic thinkers, the 'new natural lawyers', led by theologian Germain Grisez. In fact, Finnis has repeatedly advocated conservative positions concerning lesbian and gay rights, contraception and abortion, and his substantive moral theory (as he himself acknowledges) derives from Grisez. Bamforth and Richards provide a detailed explanation of the work of the new natural lawyers within and outside the Catholic Church - the first truly comprehensive explanation available to legal theorists – and criticize Grisez's and Finnis's arguments concerning sexuality and gender. New natural law is, they argue, a theology rather than a secular theory, and one which is unappealing in a modern constitutional democracy. This book will be of interest to legal and political theorists, ethicists, theologians and scholars of religious history.



Proportionality Analysis and Models of Judicial Review

Proportionality Analysis and Models of Judicial Review Author Benedikt Pirker
ISBN-10 9089521410
Release 2013
Pages 434
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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)