A Critique of Proportionality and Balancing

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

Francisco J. Urbina (Author)

9781316626818, Cambridge University Press

Paperback / softback, published 21 June 2018

267 pages
23 x 15.2 x 1.5 cm, 0.42 kg

The principle of proportionality, which has become the standard test for adjudicating human and constitutional rights disputes in jurisdictions worldwide has had few critics. Proportionality is generally taken for granted or enthusiastically promoted or accepted with minor qualifications. A Critique of Proportionality and Balancing presents a frontal challenge to this orthodoxy. It provides a comprehensive critique of the proportionality principle, and particularly of its most characteristic component, balancing. Divided into three parts, the book presents arguments against the proportionality test, critiques the view of rights entailed by it, and proposes an alternative understanding of fundamental rights and their limits.

1. Introduction
Part I: 2. The maximisation account of proportionality
3. The incommensurability objection
4. Why proportionality?
5. Proportionality, rights, and legitimate interests
Part II: 6. Proportionality as unconstrained moral reasoning
7. The need for legal direction in adjudication
8. Proportionality and the problems of legally unaided adjudication
Part III: 9. Legal human rights.

Subject Areas: Human rights & civil liberties law [LNDC], Constitutional & administrative law [LND], International human rights law [LBBR]