Proportionality analysis describes a particular legal technique of resolving conflicts between human rights or constitutional rights and public interests through a process of balancing. Originating most clearly in German 19 th century administrative law, proportionality has become a standard feature of constitutional analysis: since the Second World War it has gradually spread worldwide. The book begins by providing an overview of the margin of appreciation and standard of review, recognising that while the margin of appreciation explicitly acknowledges the existence of such deference, the standard of review does not: it is rather a procedural mechanism. The standard of review establishes the extent to which national decisions relating to factual, legal, or political issues arising in the case are re-examined in the international court. Moreover if judicial review is meaningful, within each of these two respective mutually exclusive scenarios a wide range of outcomes would presumably still be possible. His main research interests lie in the fields of European Union law, international economic law and comparative constitutional law. Series: European Administrative Law - Vol.
Description: 1 online resource 452 pages. A Theoretical and Comparative Study by Benedikt Pirker. But behind the singular appeal to proportionality lurks a range of different understandings. This enables judges to decide whether a measure has gone beyond what is required to attain a legitimate goal and whether its claimed benefits exceed the costs. European Union Law; Chapter 7.
Click Download or Read Online button to get proportionality analysis and models of judicial review book now. It is explained as necessary for the authorities one would presume judges to engage in so as to decide whether to apply proportionality and can then lead to either equal representation of special interest review. In other words I have been convinced by the comparative side of the study, including the demonstration of the theoretical framework involved therein, but not or perhaps not yet by the prescriptive theoretical side. These models are then applied to six comparative case studies in German and United States constitutional law, the law of the European Convention on Human Rights, European Union law, World Trade Organisation law and international investment law. Yet at the same time the way in which proportionality is actually applied varies widely — not just between jurisdictions, but within them. His main research interests lie in the fields of European Union law, international economic law and comparative constitutional law. This site is like a library, Use search box in the widget to get ebook that you want.
International Investment Law; Chapter 9. Based on the premise that proportionality analysis is a permissible approach to resolve conflicts between rights and other interests, this book lays out a strategy for courts and tribunals to deal with the challenge of using proportionality analysis in an adequate manner, taking into account their situation and context of judicial review. His main research interests lie in the fields of European Union law, international economic law and comparative constitutional law. International courts in such positions rely on two key doctrines: the standard of review and the margin of appreciation. It examines how the European Court of Human Rights has taken an evidence-based approach towards the margin of appreciation, as well as how it has addressed issues of hate speech.
At the same time the binary outcome suggests little reflection would in fact be required. This can often be a source of tension, as the international courts and tribunals need to judge how far to defer to the original decisions of the national bodies. This feature is currently not working, we are in the process of repairing the feature. Within each of these settings he reviews the main cases and distinguishes between the types of issue that determine the standard applied. As a general tendency, the current vivid academic debate on proportionality pays, however, insufficient attention to the institutional context — the question of judicial review.
Author by : David M. A Theoretical and Comparative Study, Description Proportionality analysis describes a particular legal technique of resolving conflicts between human or constitutional rights and public interests through a process of balancing. These models are then applied to six comparative case studies in German and United States constitutional law, the law of the European Convention on Human Rights, European Union law, World Trade Organisation law and international investment law. The margin of appreciation is the extent to which national legislative, executive, and judicial decision-makers are allowed to reflect diversity in their interpretation of human rights obligations. The book combines rigorous theoretical inquiry with thorough analysis of the European Treaties and case law, with particular attention paid to litigation involving domestic measures concerning the national system of government, constitutional rights protections, and language policy.
On the contrary, national identity rhetoric seems on the rise, not only in politics but also in legal discourse. Clarifying the issues at stake and presenting a solution to these problems, this book will be an invaluable resource for the academics, lawyers, and policy makers in the field. Readership: Scholars, practitioners, and students. I have only a few mild criticisms of this refreshing piece of scholarschip that may reflect my own shortcomings more than those of the author. Determining the nature of the test required is done by means of pre-balancing, an exercise looking at the particular situation of the reviewing tribunal. Their essays provide important new perspectives on this leading doctrine in human rights law.
Proportionality Analysis and Models of Judicial Review : A Theoretical and Comparative Study. The Inter-American system is also investigated, and it is established how far deference is possible within that legal organisation. Should arguments involving national identity be legally relevant? In his opening theoretical chapter Pirker argues that this in turn leads to the adoption of either of two models: i equal representation review; or ii special interest review. As a comparative study it enriches the available literature on which comparativists and non-comparativists alike can draw. The Law of the European Convention on Human Rights and Fundamental Freedoms; Chapter 6.
European Administrative Law Series 8 ; Acknowledgements; Contents; Chapter 1. However, as a general tendency, the current vivid academic debate on proportionality pays insufficient attention to the institutional context - the question of judicial review. The pace is demanding and so is the argument, but well rewarding. Yet scholars have only recently begun to develop the interdisciplinary analysis needed to understand this shift in the relationship of constitutional law to politics. For instance, instead of strict balancing between values a necessity test is often applied.