Proportionality and Judicial Activism
Fundamental Rights Adjudication in Canada, Germany and South Africa

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

Niels Petersen (Author)

9781316630822, Cambridge University Press

Paperback / softback, published 22 March 2018

259 pages, 1 b/w illus.
23 x 15.3 x 1.5 cm, 0.4 kg

'Niels Peterson's Proportionality and Judicial Activism is a very timely and accomplished book. It is an important addition to the now quite considerable literature on proportionality, and it would benefit anyone interested in this omnipresent doctrine, especially in the three jurisdictions it covers - Germany, Canada, and South Africa. The book is not too long, and extremely readable - two non-negligible advantages for any reader - and Peterson has a rare capacity of simplifying intricate analytical moves and theoretical constructs without losing accuracy, a talent he also applies to the many cases he reviews in the book. The book is also innovative and ambitious, making it a very interesting and enriching read.' Iddo Porat, International Journal of Constitutional Law

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.

Introduction
1. Judicial review and the correction of political market failures
2. The normative debate on balancing
3. Balancing and judicial legitimacy
4. Proportionality as a doctrinal construction
5. The avoidance of balancing
6. Rationalising balancing
Conclusion: proportionality and the review of legislative rationality.

Subject Areas: Constitutional & administrative law [LND], Judicial powers [LNAA1], Courts & procedure [LNAA]