Proportionality and the rule of law : rights, justification, reasoning / Ed. by Grant Huscroft, Bradley W. Miller and Grégoire Webber

By: Huscroft, Grant, EdContributor(s): Huscroft, Grant, Ed | Miller, Bradley W, Ed | Webber, Grégoire C. N, EdPublisher: New York: New York University Press, 2014Description: ix, 421 pISBN: 9781107647954Subject(s): Proportionality in law | Human rights | Rule of law | LAW / JurisprudenceDDC classification: 340.11 Online resources: Click here to access online
Contents:
Summary: "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 Supreme Court 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. As a 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"--
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Includes bibliographical references and index.

Introduction / Grant Huscroft, Bradley W. Miller and Grâegoire Webber -- The lost meaning of proportionality / Martin Luterâan -- Proportionality is dead : long live proportionality! / Alison L. Young -- Human dignity and proportionality : deontic pluralism in balancing / Mattias Kumm and Alec D. Walen -- Between reason and strategy : some reflections on the normativity of proportionality / George Pavlakos -- On the loss of rights / Grâegoire Webber -- Proportionality and rights inflation / Kai Mèoller -- Proportionality and the question of weight / Frederick Schauer -- Proportionality and the relevance of interpretation / Grant Huscroft -- Democracy, legality and proportionality / T.R.S. Allan -- Proportionality and deference in a culture of justification / David Dyzenhaus -- Proportionality and democratic constitutionalism / Stephen Gardbaum -- The rationalism of proportionality's culture of justification / Mark Antaki -- Proportionality and incommensurability / Timothy Endicott -- Legislating proportionately / Richard Ekins -- Proportionality's blind spot : 'neutrality' and political philosophy / Bradley W. Miller -- Mapping the American debate over balancing / Iddo Porat.

"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 Supreme Court 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. As a 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"--

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