Proportionality Balancing And Constitutional Governance

In this book, Alec Stone Sweet and Jud Mathews focus on the law and politics of rights protection in democracies, and in human rights regimes in Europe, the Americas, and Africa. After introducing the basic features of modern constitutions, with their emphasis on rights and judicial review, the authors present a theory of proportionality that explains why constitutional judges embraced it. Proportionality analysis is a highly intrusive mode of judicial supervision: it permits state officials to limit rights, but only when necessary to achieve a sufficiently important public interest. Since the 1950s, virtually every powerful domestic and international court has adopted proportionality analysis as the central method for protecting rights. In doing so, judges positioned themselves to review all important legislative and administrative decisions, and to invalidate them as unconstitutional when such policies fail the proportionality test. The result has been a massive - and global - transformation of law and politics. The book explicates the concepts of 'trusteeship', the 'system of constitutional justice', the 'effectiveness' of rights adjudication, and the 'zone of proportionality'. A wide range of case studies analyse: how proportionality has spread, and variation in how it is deployed; the extent to which the U.S. Supreme Court has evolved and resisted similar doctrines; the role of proportionality in building ongoing 'constitutional dialogues' with the other branches of government; and the importance of the principle to the courts of regional human rights regimes. While there is variance in the intensity of proportionality-based dialogues, such interactions are today at the very heart of governance in the modern constitutional state and beyond.

This book offers a comprehensive critique of the principle of proportionality and balancing as applied to human and constitutional rights.

From the ancient origins of Just War doctrine to contemporary theories of punishment, concepts of proportionality have long been an instrumental part of the rule of law and an essential check on government power. Two renowned legal scholars seek to advance such a theory.

A comparative and historical account of the origins and meanings of the discourse of judicial 'balancing' in constitutional rights law.

This book offers a comprehensive account of the case law of the ECJ, the European Court of Human Rights, and the German Federal Constitutional Court regarding the application of fundamental rights and the application of the proportionality principle.

This book uses empirical analysis to show that courts refrain from using the proportionality test as a means of judicial activism.

A comparative and empirical analysis of proportionality in the case law of six constitutional and supreme courts.

Leading constitutional theorists debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning.