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.
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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.
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Introduction ; 1. The Structure of the Proportionality Test ; 2. Rights, Interests, and Trumps ; 3. The Method of Balancing ; 4. Discretion and Deference ; 5. Positive Rights and Proportionality Analysis ; 6. Epistemic Reliabilities in Proportionality Analysis ; 7. Case Analysis: Otto-Preminger-Institut v Austria ; 8. Results
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An original and comprehensive analysis of one of the most important and controversial elements of global constitutionalism
Presents new theories of absolute rights and of positive obligations, clarifying their role in balancing human rights
Defends the proportionality test as a core element of constitutional rights reasoning
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Matthias Klatt is Professor of Public Law, EU Law, Public International Law, and Jurisprudence at the University of Hamburg. He specializes in the philosophy of law and his first book, Making the Law Explicit: The Normativity of Legal Argumentation, was published by Hart in 2008. He is the editor of the forthcoming Institutionalized Reason: The Jurisprudence of Robert Alexy (OUP, 2012).
Moritz Meister is a Lecturing Tutor in Public Law at the University of Hamburg and a trainee lawyer at the Higher Regional Court, Hamburg. He was a student of Matthais Klatt and graduated summa cum laude with a doctorate in law from the University of Hamburg. His dissertation was published by Duncker and Humblot in 2011.
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An original and comprehensive analysis of one of the most important and controversial elements of global constitutionalism
Presents new theories of absolute rights and of positive obligations, clarifying their role in balancing human rights
Defends the proportionality test as a core element of constitutional rights reasoning
Read more
Product details
ISBN
9780199662463
Published
2012
Publisher
Oxford University Press
Weight
472 gr
Height
241 mm
Width
164 mm
Thickness
18 mm
Age
UP, 05
Language
Product language
Engelsk
Format
Product format
Innbundet
Number of pages
204