The Constitutional Structure of Proportionality

by Klatt, Matthias; Meister, Moritz

• ISBN13: 9780199662463
• ISBN10: 0199662460
• Format: Hardcover
• Copyright: 2012-09-08
• Publisher: Oxford University Press

Summary

As constitutional law globalizes, the quest for a common grammar or 'generic constitutional law' becomes more pressing. Proportionality is one of the most prominent and controversial components of the modern, global constitutional discourse. In view of the alarming tension between the triumphant success of proportionality and the severity of the criticism directed towards it, this book offers an in-depth analysis of the critics of proportionality and demonstrates that theirobjections against the proportionality test are not convincing. It clarifies and further develops the current theories of proportionality and balancing. Building upon on Robert Alexy's predominant principles theory, the book suggests several modifications to this theory. Drawing examples from the case law of the European Court of Human Rights, the European Court of Justice, and various national constitutional courts it illustrates the argument in favour of proportionality and demonstrates its relevance for deciding concrete cases.

Author Biography

Matthias Klatt is Professor of Public Law, EU Law, Public International Law, and Jurisprudence at the University of Hamburg. He specializes in the philosophy of law and his first book, Making the Law Explicit: The Normativity of Legal Argumentation, was published by Hart in 2008. He is the editor of the forthcoming Institutionalized Reason: The Jurisprudence of Robert Alexy (OUP, 2012).


Moritz Meister is a Lecturing Tutor in Public Law at the University of Hamburg and a trainee lawyer at the Higher Regional Court, Hamburg. He was a student of Matthais Klatt and graduated summa cum laude with a doctorate in law from the University of Hamburg. His dissertation was published by Duncker and Humblot in 2011.

Table of Contents

List of Tables	p. ix
List of Cases	p. xi
List of Formulae	p. xiii
List of Variables	p. xv
Introduction	p. 1
The Structure of the Proportionality Test	p. 7
The four proportionality rules	p. 8
The weight formula	p. 10
Rights, Interests, and Trumps	p. 15
Interest model	p. 16
Strong trump model	p. 17
Medium trump model	p. 22
Weak trump model	p. 23
Results	p. 44
The Method of Balancing	p. 45
Definitional generosity	p. 45
Rule of law	p. 49
The impact of morals on balancing	p. 51
Balancing as calculation	p. 57
Incommensurability	p. 58
Inviolable core content	p. 66
Correctness and adequateness	p. 68
Overemphasis of balancing	p. 70
Results	p. 72
Discretion and Deference	p. 75
Structural discretion	p. 79
Epistemic discretion	p. 80
Results	p. 84
Positive Rights and Proportionality Analysis	p. 85
Introduction	p. 85
Negative rights and the proportionality test	p. 90
Positive rights and the proportionality test	p. 94
Positive rights and the margin of appreciation	p. 101
Results	p. 108
Epistemic Reliabilities in Proportionality Analysis	p. 109
Introduction	p. 109
Balancing and principles theory	p. 110
Empirical epistemic discretion	p. 111
Normative epistemic discretion	p. 123
Epistemic discretion and judicial review	p. 135
Results	p. 147
Case Analysis: Otto-Preminger-Institut v Austria	p. 149
The judgment	p. 150
Proportionality applied	p. 153
Results	p. 165
Results	p. 167
Bibliography	p. 173
Index of Names	p. 181
Index of Subjects	p. 182
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