Author : Niels Petersen
Publisher : Cambridge University Press
Page : 261 pages
File Size : 35,53 MB
Release : 2017-03-02
Category : Law
ISBN : 1107177987
This book uses empirical analysis to show that courts refrain from using the proportionality test as a means of judicial activism.
Author : Niels Petersen
Publisher : Cambridge University Press
Page : 261 pages
File Size : 34,62 MB
Release : 2017-03-02
Category : Law
ISBN : 1316834034
The principle of proportionality is currently one of the most discussed topics in the field of comparative constitutional law. Many critics claim that courts use the proportionality test as an instrument of judicial self-empowerment. Proportionality and Judicial Activism tests this hypothesis empirically; it systematically and comparatively analyses the fundamental rights jurisprudence of the Canadian Supreme Court, the German Federal Constitutional Court and the South African Constitutional Court. The book shows that the proportionality test does give judges a considerable amount of discretion. However, this analytical openness does not necessarily lead to judicial activism. Instead, judges are faced with significant institutional constraints, as a result of which all three examined courts refrain from using proportionality for purposes of judicial activism.
Author : Luís Pereira Coutinho
Publisher : Springer
Page : 212 pages
File Size : 18,97 MB
Release : 2015-05-26
Category : Law
ISBN : 3319185497
This volume offers different perspectives on judicial practice in the European and American contexts, both arguably characterized in the last decades by the emergence of novel normative and even policy arguments by judges. The central question deserving the attention of the contributors concerns the degree in which judicial exercises in practical reasoning may amount to forms of judicial usurpation of the legislative function by courts. Since different views as to the nature and scope of legal reasoning lead to different degrees of tolerance regarding what should be admissible to courts, that same nature and scope is thoroughly debated. The main disciplinary approach is that of general jurisprudence, but the contributions take stock of other disciplines in which judicial activism has been addressed, namely positive theories of judicial behavior. Accordingly, the book also explores the development of interdisciplinary dialogue about the theme.
Author : Martin Belov
Publisher : Routledge
Page : 319 pages
File Size : 10,49 MB
Release : 2021-09-22
Category : Law
ISBN : 1000436411
This collection examines topical issues related to the impact of courts on constitutional politics during extreme conditions. The book explores the impact of activist courts on democracy, separation of powers and rule of law in times of emergency constitutionalism. It starts with a theoretical explanation of the concept, features and main manifestations of judicial activism and its impact in shaping the relationship between constitutional, international and supranational law. It then focuses on judicial activism in extreme conditions, for example, in times of emergencies and pandemics, or in the context of democratic backsliding, authoritarian constitutionalism and illiberal constitutionalism. Thus, the book may be considered as a contribution to the debates on judicial activism, including the discussion of the impact of courts on certainty, proportionality and balancing of rights, as well as on revolutionary courts challenging authoritarian context and generally over the role of courts in the context of illiberalism and democratic backsliding. The volume thus offers an explanation of the concept of judicial activism, its impact on both the legal system and the political order and the role of courts in shaping the structures of the legal order. These issues are explored in theoretical and comparative constitutional perspectives. The book will be a valuable resource for academics and researchers working in the areas of courts, constitutional law and constitutional politics.
Author : David Duarte
Publisher : Springer
Page : 200 pages
File Size : 43,53 MB
Release : 2018-07-09
Category : Law
ISBN : 9783319896465
This book addresses the principle of proportionality, which is currently one of the most important instruments of judicial review, from both analytical and theory of law perspectives. As such, the analysis provided is far more comprehensive and can be applied to all areas of law, not just constitutional law. On the one hand, the volume offers a broad perspective on several aspects related to proportionality, such as its structure, the balancing methodology and the distinction between rules and principles. On the other, it provides an innovative, normativist and analytical approach to proportionality, helping readers understand its structure and behaviour.
Author : Mordechai Kremnitzer
Publisher : Cambridge University Press
Page : 689 pages
File Size : 42,43 MB
Release : 2020-04-30
Category : Law
ISBN : 1108497586
A comparative and empirical analysis of proportionality in the case law of six constitutional and supreme courts.
Author : Yutaka Arai-Takahashi
Publisher : Intersentia nv
Page : 263 pages
File Size : 28,80 MB
Release : 2002
Category : Convention for the Protection of Human Rights and Fundamental Freedoms
ISBN : 9050951953
5.2.3. Burden of Proof
Author : Moshe Cohen-Eliya
Publisher : Cambridge University Press
Page : 183 pages
File Size : 43,43 MB
Release : 2013-06-13
Category : Law
ISBN : 1107021863
A comparison of proportionality, the dominant doctrine in constitutional law worldwide, with the American doctrine of balancing.
Author : Aharon Barak
Publisher : Cambridge University Press
Page : 638 pages
File Size : 23,40 MB
Release : 2012-01-19
Category : Law
ISBN : 9781107401198
Having identified proportionality as the main tool for limiting constitutional rights, Aharon Barak explores its four components (proper purpose, rational connection, necessity and proportionality stricto sensu) and discusses the relationships between proportionality and reasonableness and between courts and legislation. He goes on to analyse the concept of deference and to consider the main arguments against the use of proportionality (incommensurability and irrationality). Alternatives to proportionality are compared and future developments of proportionality are suggested.
Author : Rainer Arnold
Publisher : Springer
Page : 444 pages
File Size : 46,92 MB
Release : 2017-05-16
Category : Law
ISBN : 3319551868
Judicial control of public power ensures a guarantee of the rule of law. This book addresses the scope and limits of judicial control at the national level, i.e. the control of public authorities, and at the supranational level, i.e. the control of States. It explores the risk of judicial review leading to judicial activism that can threaten the principle of the separation of powers or the legitimate exercise of state powers. It analyzes how national and supranational legal systems have embodied certain mechanisms, such as the principles of reasonableness, proportionality, deference and margin of appreciation, as well as the horizontal effects of human rights that help to determine how far a judge can go. Taking a theoretical and comparative view, the book first examines the conceptual bases of the various control systems and then studies the models, structural elements, and functions of the control instruments in selected countries and regions. It uses country and regional reports as the basis for the comparison of the convergences and divergences of the implementation of control in certain countries of Europe, Latin America, and Africa. The book’s theoretical reflections and comparative investigations provide answers to important questions, such as whether or not there are nascent universal principles concerning the control of public power, how strong the impact of particular legal traditions is, and to what extent international law concepts have had harmonizing and strengthening effects on internal public-power control.
