Proportionality and the Rule of Law
Rights, Justification, Reasoning

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

Grant Huscroft (Edited by), Bradley W. Miller (Edited by), Grégoire Webber (Edited by)

9781107647954, Cambridge University Press

Paperback / softback, published 7 January 2016

432 pages, 1 b/w illus. 1 table
22.9 x 15.2 x 2.2 cm, 0.58 kg

To speak of human rights in the twenty-first century is to speak of proportionality. Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, South Africa, and the United States, as well as the jurisprudence of treaty-based legal systems such as the European Convention on Human Rights. Proportionality provides a common analytical framework for resolving the great moral and political questions confronting political communities. But behind the singular appeal to proportionality lurks a range of different understandings. This volume brings together many of the world's leading constitutional theorists - proponents and critics of proportionality - to debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning. Their essays provide important new perspectives on this leading doctrine in human rights law.

1. Introduction Grant Huscroft, Bradley W. Miller and Grégoire Webber
Part I. Conceptions of Proportionality: 2. The lost meaning of proportionality Martin Luterán
3. Proportionality is dead: long live proportionality! Alison L. Young
4. Human dignity and proportionality: deontic pluralism in balancing Mattias Kumm and Alec D. Walen
5. Between reason and strategy: some reflections on the normativity of proportionality George Pavlakos
Part II. Proportionality and Rights: 6. On the loss of rights Grégoire Webber
7. Proportionality and rights inflation Kai Möller
8. Proportionality and the question of weight Frederick Schauer
9. Proportionality and the relevance of interpretation Grant Huscroft
Part III. Proportionality and Justification: 10. Democracy, legality and proportionality T. R. S. Allan
11. Proportionality and deference in a culture of justification David Dyzenhaus
12. Proportionality and democratic constitutionalism Stephen Gardbaum
13. The rationalism of proportionality's culture of justification Mark Antaki
Part IV. Proportionality and Reasoning: 14. Proportionality and incommensurability Timothy Endicott
15. Legislating proportionately Richard Ekins
16. Proportionality's blind spot: 'neutrality' and political philosophy Bradley W. Miller
17. Mapping the American debate over balancing Iddo Porat.

Subject Areas: Constitutional & administrative law [LND], Jurisprudence & philosophy of law [LAB], Law [L]