Proportionality
New Frontiers, New Challenges

This book presents important new scholarship by leading figures in constitutional law on new challenges for proportionality doctrine.

Vicki C. Jackson (Edited by), Mark Tushnet (Edited by)

9781316617007, Cambridge University Press

Paperback / softback, published 20 December 2018

351 pages
27 x 15.2 x 1.9 cm, 0.5 kg

With contributions from leading scholars in constitutional law, this volume examines how carefully designed and limited doctrines of proportionality can improve judicial decision-making, how it is applied in different jurisdictions, its role on constitutionalism outside the courts, and whether the principle of proportionality actually advances or detracts from democracy. Contributions from some of the seminal thinkers on the development of scholarship on proportionality (e.g. Alexy, Barak, and Beatty) extend their prior work and engage in an important dialogue on the topic. Some offer substantial critiques, others defend the doctrine and offer important clarifications and extensions of their prior work. Throughout, the authors engage not only with case law from around the world but also with existing scholarly treatments of the subject. Mathematical treatments are avoided, making the book accessible to readers from both 'soft' and hard' social science backgrounds.

Introduction Vicki C. Jackson and Mark Tushnet
Part l. Paradigms of Proportionality: 1. Proportionality and rationality Robert Alexy
2. Proportionality outside the courts, with special reference to popular and political constitutionalism Frank I. Michelman
3. Is the structure of human rights practice defensible? Three puzzles and their solution Mattias Kumm
4. Proportionality and absolute rights Grégoire Webber
Part ll. Proportionality and the United States: 5. Constitutional law and proportionality: the administrative origins of constitutional rights and how they shaped global constitutionalism Moshe Cohen-Eliya and Iddo Porat
6. US constitutional law, proportionality, and the global model Kai Moller
7. Beyond proportionality: thinking comparatively about constitutional review and punitiveness Jacco Bomhoff
8. Proportionality and equality Vicki C. Jackson
9. Proportionality and stare decisis – proposal for a new structure Vlad Perju
Part lll. Extending the Reach of Proportionality and Equality: 10. Positive and horizontal rights: proportionality's next frontier or a bridge too far? Stephen Gardbaum
11. Proportionality, reasonableness, and economic and social rights Katherine G. Young
12. In praise of casuistry: making hard cases easier David Beatty
Part lV. Thoughts for the Future: Of Scepticism and Research Agendas: 13. Making easy cases harder Mark Tushnet
14. A research agenda for the future Aharon Barak.

Subject Areas: Constitutional & administrative law [LND], Public international law [LBB], Comparative law [LAM], Jurisprudence & philosophy of law [LAB], Political science & theory [JPA]