Proportionality and the Rule of Law: Rights, Justification, Reasoning

by Grant Huscroft, Bradley W. Miller, Grégoire Webber

Overview

To speak of human rights in the twenty-first century is to speak of proportionality. Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, South Africa, and the United States, as well as the jurisprudence of treaty-based legal systems such as the European Convention on Human Rights. Proportionality provides a common analytical framework for resolving the great moral and political questions confronting political communities. But behind the singular appeal to proportionality lurks a range of different understandings. This volume brings together many of the world's leading constitutional theorists – proponents and critics of proportionality – to debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning. Their essays provide important new perspectives on this leading doctrine in human rights law.

Product Details

ISBN-13:	9781107064072
Publisher:	Cambridge University Press
Publication date:	04/21/2014
Pages:	432
Product dimensions:	6.30(w) x 9.09(h) x 0.98(d)

About the Author

Grant Huscroft is Professor in the Faculty of Law at Western University in London, Canada, where he is a founding member of the Public Law and Legal Philosophy Research Group. His research focuses on constitutional rights and judicial review, and his work has been published in Canada, the United States, the UK, New Zealand, and Australia. He is co-author of the treatise The New Zealand Bill of Rights (2003) and has edited/co-edited seven collections of essays.

Bradley W. Miller is Associate Professor in the Faculty of Law at Western University in London, Canada, where he is a founding member of the Public Law and Legal Philosophy Research Group. His research focuses on theories of constitutional interpretation and the place of moral reasoning in legal reasoning. He has been published in the American Journal of Jurisprudence, the Canadian Journal of Law and Jurisprudence, Public Law Review, and Res Publica.

Grégoire Webber is Associate Professor of Law at the London School of Economics and Political Science. His research focuses on rights, public law, and the philosophy of law and has been published in the Oxford Journal of Legal Studies, the Law Quarterly Review, and the Modern Law Review. He is the author of The Negotiable Constitution: On the Limitation of Rights (2009), published by Cambridge University Press.

Table of Contents

1. Introduction Grant Huscroft, Bradley W. Miller and Grégoire Webber; Part I. Conceptions of Proportionality: 2. The lost meaning of proportionality Martin Luterán; 3. Proportionality is dead: long live proportionality! Alison L. Young; 4. Human dignity and proportionality: deontic pluralism in balancing Mattias Kumm and Alec D. Walen; 5. Between reason and strategy: some reflections on the normativity of proportionality George Pavlakos; Part II. Proportionality and Rights: 6. On the loss of rights Grégoire Webber; 7. Proportionality and rights inflation Kai Möller; 8. Proportionality and the question of weight Frederick Schauer; 9. Proportionality and the relevance of interpretation Grant Huscroft; Part III. Proportionality and Justification: 10. Democracy, legality and proportionality T. R. S. Allan; 11. Proportionality and deference in a culture of justification David Dyzenhaus; 12. Proportionality and democratic constitutionalism Stephen Gardbaum; 13. The rationalism of proportionality's culture of justification Mark Antaki; Part IV. Proportionality and Reasoning: 14. Proportionality and incommensurability Timothy Endicott; 15. Legislating proportionately Richard Ekins; 16. Proportionality's blind spot: 'neutrality' and political philosophy Bradley W. Miller; 17. Mapping the American debate over balancing Iddo Porat.