Proportionality and Transformation
Theory and Practice from Latin America

This is the first book on the theory and practice of proportionality in Latin American constitutional law.

Francisca Pou-Giménez (Edited by), Laura Clérico (Edited by), Esteban Restrepo-Saldarriaga (Edited by)

9781009201803, Cambridge University Press

Hardback, published 3 November 2022

376 pages
23.5 x 15.9 x 2.4 cm, 0.65 kg

This is the first book on proportionality in Latin American constitutional law. Leading scholars in the region explore how proportionality analysis has become a key part of the constitutional law of a region where, almost paradoxically, constitutions with clear transformative intentions coexist with the highest indicators of social inequality in the world. In this book, scholars, practitioners and students will find a fascinating account of how proportionality has been a central concept in Latin America's constitutional struggles to curtail excessive uses of state power. The book illustrates how, more recently, proportionality has played an important role in national processes of constitutionalization and transitional justice, and how its current uses in the domain of social rights endow it with a distinctive meaning and role in regional constitutionalism. This pioneering book opens up the space for a much needed global conversation on how Latin America has decisively contributed to comparative constitutional law.

Part I. Proportionality and Processes of constitutionalization: 1. The Standard Reasonableness Test and Proportionality in Argentina: a matter of interactions Laura Clérico and Federico de Fazio
2. Proportionality in the case law of the constitutional court of Ecuador Daniela Salazar Marín and Ramiro Ávila Santamaría
3. Proportionality and human rights in Mexico Arturo Bárcena Zubieta
4. Proportionality and the construction of democracy: notes from the Peruvian jurisprudence Pedro Grández Castro
5. Proportionality in the case law of the Chilean constitutional court Verónica Undurraga and Pascual Cortés
Part II. Proportionality in Social Rights and Equality-based Adjudication: 6. Socio-economic rights in the Colombian constitutional jurisprudence: proportionality and the prohibition of retrogressive measures Magdalena Correa Heano and Alejandra Osorio Alvis
7. Progressive realization, non-retrogression, and maximum of available resources. Agreements and disagreements between the Inter-American court and the United Nations ESCR committee Julieta Rossi
8. Proportionality in the adjudication of equality and non-discrimination cases in the Inter-American system Silvia Serrano
9. Transformation and its limits: proportionality, courts, and social rights in Brazil Virgilio Afonso da Silva and Paula Gorzoni
Part III. Proportionality, Between Transformation and the Status Quo: 10. Between exception and transition: proportionality and necessity in the Colombian quest for peace Antonio Barreto Rozo and Jorge González-Jácome
11. Proportionality and state Ius Puniendi, Mary Beloff
12. Distributional analysis as an alternative to proportionality analysis in judicial decision-making Isabel Cristina Jaramillo Sierra
13. Proportionality, social justice, and democracy Martín Aldao
14. Unilateralism, dialogue, and false necessity: the distribution of the burden of proof in proportionality analysis Francisca Pou-Giménez
Epilogue. The elephant in the room Jamal Greene.

Subject Areas: Constitutional & administrative law [LND], Public international law [LBB], Comparative law [LAM]