The Constitutional Structure of Proportionality

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  • Format: Hardcover
  • Copyright: 2012-09-08
  • Publisher: Oxford University Press

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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 Tablesp. ix
List of Casesp. xi
List of Formulaep. xiii
List of Variablesp. xv
Introductionp. 1
The Structure of the Proportionality Testp. 7
The four proportionality rulesp. 8
The weight formulap. 10
Rights, Interests, and Trumpsp. 15
Interest modelp. 16
Strong trump modelp. 17
Medium trump modelp. 22
Weak trump modelp. 23
Resultsp. 44
The Method of Balancingp. 45
Definitional generosityp. 45
Rule of lawp. 49
The impact of morals on balancingp. 51
Balancing as calculationp. 57
Incommensurabilityp. 58
Inviolable core contentp. 66
Correctness and adequatenessp. 68
Overemphasis of balancingp. 70
Resultsp. 72
Discretion and Deferencep. 75
Structural discretionp. 79
Epistemic discretionp. 80
Resultsp. 84
Positive Rights and Proportionality Analysisp. 85
Introductionp. 85
Negative rights and the proportionality testp. 90
Positive rights and the proportionality testp. 94
Positive rights and the margin of appreciationp. 101
Resultsp. 108
Epistemic Reliabilities in Proportionality Analysisp. 109
Introductionp. 109
Balancing and principles theoryp. 110
Empirical epistemic discretionp. 111
Normative epistemic discretionp. 123
Epistemic discretion and judicial reviewp. 135
Resultsp. 147
Case Analysis: Otto-Preminger-Institut v Austriap. 149
The judgmentp. 150
Proportionality appliedp. 153
Resultsp. 165
Resultsp. 167
Bibliographyp. 173
Index of Namesp. 181
Index of Subjectsp. 182
Table of Contents provided by Ingram. All Rights Reserved.

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