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The Constitutional Structure of Proportionality

The Constitutional Structure of Proportionality

Author: Matthias Klatt; Moritz Meister
Publisher: Oxford University Press
ISBN: 9780199662463
Published In: July 2012
Format: Hardback , 208 pages
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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An original and comprehensive analysis of one of the most important and controversial elements of global constitutionalism
Presents new theories of absolute rights and of positive obligations, clarifying their role in balancing human rights
Defends the proportionality test as a core element of constitutional rights reasoning

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 their objections 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.

Readership: Scholars and students working in constitutional law, public law, and human rights law; practitioners working in public law

Introduction
1: The Structure of the Proportionality Test
2: Rights, Interests, and Trumps
3: The Method of Balancing
4: Discretion and Deference
5: Positive Rights and Proportionality Analysis
6: Epistemic Reliabilities in Proportionality Analysis
7: Case Analysis: Otto-Preminger-Institut v Austria
8: Results

Matthias Klatt, Professor of Public Law, EU Law, Public International Law and Jurisprudence, University of Hamburg, and Moritz Meister, Trainee Lawyer, Higher Regional Court of Justice Hamburg

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.