A Critique of Proportionality and Balancing

Administrative / Constitutional Law › Human Rights

A Critique of Proportionality and Balancing

By Francisco Urbina
Cambridge University Press June 2018

Specifications

ISBN-13
9781316626818
Publisher
Cambridge University Press
Publication
June 2018
Format
Paperback
Jurisdiction
U.K. ? Countri(es) for reference only

Also available as

Hardback

Details

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.

Table of Contents

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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