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A Critique of Proportionality and Balancing

A Critique of Proportionality and Balancing

A Critique of Proportionality and Balancing

Author: Francisco Urbina
Publisher: Cambridge University Press
ISBN: 9781107175068

Published In: January 2017
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Paperback Edition ISBN: 9781316626818

List Price: $192.66

$186.88 Save $5.78 (3%)

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Description
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The principle of proportionality, which has become the standard test for adjudicating human and constitutional rights disputes in jurisdictions worldwide has had few critics. Proportionality is generally taken for granted or enthusiastically promoted or accepted with minor qualifications.

A Critique of Proportionality and Balancing presents a frontal challenge to this orthodoxy. It provides a comprehensive critique of the proportionality principle, and particularly of its most characteristic component, balancing.

Divided into three parts, the book presents arguments against the proportionality test, critiques the view of rights entailed by it, and proposes an alternative understanding of fundamental rights and their limits.

1. Introduction

Part I:

2. The maximisation account of proportionality

3. The incommensurability objection

4. Why proportionality?

5. Proportionality, rights, and legitimate interests

Part II:

6. Proportionality as unconstrained moral reasoning

7. The need for legal direction in adjudication

8. Proportionality and the problems of legally unaided adjudication

Part III:

9. Legal human rights.

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