Proportionality and the rule of law : rights, justification, reasoning / edited by Grant Huscroft, Western University, Canada; Bradley W. Miller, Western University, Canada; Grégoire Webber, London School of Economics.

Format:

Book

Contributor:

Huscroft, Grant, editor.

Miller, Bradley W. (Bradley Wayne), 1968- editor.

Webber, Grégoire C. N. (Grégoire Charles N.), editor.

Language:

English

Subjects (All):

Proportionality in law.

Human rights.

Rule of law.

Physical Description:

ix, 421 pages ; 24 cm

Place of Publication:

New York, NY : Cambridge University Press, 2014.

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"-- Provided by publisher.

Contents:

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.

Notes:

Includes bibliographical references and index.

ISBN:

9781107064072

1107064074

9781107647954

1107647959

OCLC:

862401019