Proportionality analysis describes a particular legal technique of resolving conflicts between human rights or constitutional rights and public interests through a process of balancing. However, as a general tendency, the current vivid academic debate on proportionality pays insufficient attention to the institutional context - the question of judicial review. 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. For this purpose, the book develops the concept of models of judicial review in a first theoretical chapter. These models are then applied to six comparative case studies in German and US constitutional law, the law of the European Convention on Human Rights, European Union law, World Trade Organization law, and international investment law. (Series: European Administrative Law - Vol. 8)

A rigorous analysis of the relationship between proportionality and deference under the Human Rights Act.

A comparative and empirical analysis of proportionality in the case law of six constitutional and supreme courts.

This book uses empirical analysis to show that courts refrain from using the proportionality test as a means of judicial activism.

In this book Dimitrios Kyritsis advances an original account of constitutional review of primary legislation for its compatibility with human rights. Key to it is the value of separation of powers. When the relationship between courts and the legislature realizes this value, it makes a stronger claim to moral legitimacy. Kyritsis steers a path between the two extremes of the sceptics and the enthusiasts. Against sceptics who claim that constitutional review is an affront to democracy he argues that it is a morally legitimate institutional option for democratic societies because it can provide an effective check on the legislature. Although the latter represents the people and should thus be given the initiative in designing government policy, it carries serious risks, which institutional design must seek to avert. Against enthusiasts he maintains that fundamental rights protection is not the exclusive province of courts but the responsibility of both the judiciary and the legislature. Although courts may sometimes be given the power to scrutinize legislation and even strike it down, if it violates human rights, they must also respect the legislature's important contribution to their joint project. Occasionally, they may even have a duty to defer to morally sub-optimal decisions, as far as rights protection is concerned. This is as it should be. Legitimacy demands less than the ideal. In turn, citizens ought to accept discounts on perfect justice for the sake of achieving a reasonably just and effective political order overall.

Constitutional courts around the world play an increasingly central role in day-to-day democratic governance. Yet scholars have only recently begun to develop the interdisciplinary analysis needed to understand this shift in the relationship of constitutional law to politics. This edited volume brings together the leading scholars of constitutional law and politics to provide a comprehensive overview of judicial review, covering theories of its creation, mechanisms of its constraint, and its comparative applications, including theories of interpretation and doctrinal developments. This book serves as a single point of entry for legal scholars and practitioners interested in understanding the field of comparative judicial review in its broader political and social context.

Stephen Gardbaum proposes and examines a new way of protecting rights in a democracy.