[PDF] Proportionality And Judicial Activism eBook

Author : Niels Petersen
Publisher : Cambridge University Press
Page : 261 pages
File Size : 18,39 MB
Release : 2017-03-02
Category : Law
ISBN : 1316834034

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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.

Author : Martin Belov
Publisher : Routledge
Page : 319 pages
File Size : 50,52 MB
Release : 2021-09-22
Category : Law
ISBN : 1000436411

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This collection examines topical issues related to the impact of courts on constitutional politics during extreme conditions. The book explores the impact of activist courts on democracy, separation of powers and rule of law in times of emergency constitutionalism. It starts with a theoretical explanation of the concept, features and main manifestations of judicial activism and its impact in shaping the relationship between constitutional, international and supranational law. It then focuses on judicial activism in extreme conditions, for example, in times of emergencies and pandemics, or in the context of democratic backsliding, authoritarian constitutionalism and illiberal constitutionalism. Thus, the book may be considered as a contribution to the debates on judicial activism, including the discussion of the impact of courts on certainty, proportionality and balancing of rights, as well as on revolutionary courts challenging authoritarian context and generally over the role of courts in the context of illiberalism and democratic backsliding. The volume thus offers an explanation of the concept of judicial activism, its impact on both the legal system and the political order and the role of courts in shaping the structures of the legal order. These issues are explored in theoretical and comparative constitutional perspectives. The book will be a valuable resource for academics and researchers working in the areas of courts, constitutional law and constitutional politics.

Author : Luís Pereira Coutinho
Publisher : Springer
Page : 212 pages
File Size : 45,74 MB
Release : 2015-05-26
Category : Law
ISBN : 3319185497

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This volume offers different perspectives on judicial practice in the European and American contexts, both arguably characterized in the last decades by the emergence of novel normative and even policy arguments by judges. The central question deserving the attention of the contributors concerns the degree in which judicial exercises in practical reasoning may amount to forms of judicial usurpation of the legislative function by courts. Since different views as to the nature and scope of legal reasoning lead to different degrees of tolerance regarding what should be admissible to courts, that same nature and scope is thoroughly debated. The main disciplinary approach is that of general jurisprudence, but the contributions take stock of other disciplines in which judicial activism has been addressed, namely positive theories of judicial behavior. Accordingly, the book also explores the development of interdisciplinary dialogue about the theme.

Author : David Duarte
Publisher : Springer
Page : 200 pages
File Size : 37,4 MB
Release : 2018-07-09
Category : Law
ISBN : 9783319896465

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This book addresses the principle of proportionality, which is currently one of the most important instruments of judicial review, from both analytical and theory of law perspectives. As such, the analysis provided is far more comprehensive and can be applied to all areas of law, not just constitutional law. On the one hand, the volume offers a broad perspective on several aspects related to proportionality, such as its structure, the balancing methodology and the distinction between rules and principles. On the other, it provides an innovative, normativist and analytical approach to proportionality, helping readers understand its structure and behaviour.

Author : Mordechai Kremnitzer
Publisher : Cambridge University Press
Page : 689 pages
File Size : 29,36 MB
Release : 2020-04-30
Category : Law
ISBN : 1108497586

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

Author : Yutaka Arai-Takahashi
Publisher : Intersentia nv
Page : 263 pages
File Size : 48,97 MB
Release : 2002
Category : Convention for the Protection of Human Rights and Fundamental Freedoms
ISBN : 9050951953

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5.2.3. Burden of Proof

Author : Kenneth M. Holland
Publisher : Springer
Page : 230 pages
File Size : 28,34 MB
Release : 1991-06-18
Category : Law
ISBN : 1349117749

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The theme of this book is judicial activism in industrialized democracies, with a chapter on the changing political roles of the courts in the Soviet Union. Eleven contributors describe the extent to which the highest courts in their country of expertise have embraced the making of public policy.

Author : Moshe Cohen-Eliya
Publisher : Cambridge University Press
Page : 183 pages
File Size : 36,44 MB
Release : 2013-06-13
Category : Law
ISBN : 1107244757

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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.

Author : E. Thomas Sullivan
Publisher : Oxford University Press
Page : 297 pages
File Size : 25,88 MB
Release : 2008-12-05
Category : Law
ISBN : 0199886695

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From the ancient origins of Just War doctrine to utilitarian and retributive theories of punishment, concepts of proportionality have long been an instrumental part of the rule of law and an essential check on government power. These concepts all embody the fundamental value that government and private actions should not be demonstrably excessive relative to their moral and practical justifications. In the American legal system, despite frequent though unacknowledged use of proportionality principles, there is no general theory of what permits courts to invalidate intrusive measures. In Proportionality Principles in American Law, two renowned legal scholars seek to advance such a theory. They argue that standards of review should be more clearly and precisely defined, and that in most circumstances every intrusive government measure which limits or threatens individual rights should undergo some degree of proportionality review. Across a wide range of legal contexts, E. Thomas Sullivan and Richard S. Frase identify three basic ways that government measures and private remedies have been found to be disproportionate: relative to fault; relative to alternative means of achieving the same practical purposes; and relative to the likely practical benefits of the measure or remedy. Using this structure, the book examines the origins and contemporary uses of proportionality principles in public law, civil liberties, and the criminal justice system, emphasizing the utility of proportionality principles to guide judicial review of excessive government measures. By constructing a new framework and a general theory for constitutional judicial review, Proportionality Principles in American Law will help courts more consistently and effectively apply proportionality principles to better serve their vital roles as guardians of individual rights and liberties.