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Books > Law > Jurisprudence & general issues > Comparative law
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Proportionality Balancing and Constitutional Governance - A Comparative and Global Approach (Paperback)
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Proportionality Balancing and Constitutional Governance - A Comparative and Global Approach (Paperback)
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In this book, Alec Stone Sweet and Jud Mathews focus on the law and
politics of rights protection in democracies, and in human rights
regimes in Europe, the Americas, and Africa. After introducing the
basic features of modern constitutions, with their emphasis on
rights and judicial review, the authors present a theory of
proportionality that explains why constitutional judges embraced
it. Proportionality analysis is a highly intrusive mode of judicial
supervision: it permits state officials to limit rights, but only
when necessary to achieve a sufficiently important public interest.
Since the 1950s, virtually every powerful domestic and
international court has adopted proportionality analysis as the
central method for protecting rights. In doing so, judges
positioned themselves to review all important legislative and
administrative decisions, and to invalidate them as
unconstitutional when such policies fail the proportionality test.
The result has been a massive - and global - transformation of law
and politics. The book explicates the concepts of 'trusteeship',
the 'system of constitutional justice', the 'effectiveness' of
rights adjudication, and the 'zone of proportionality'. A wide
range of case studies analyse: how proportionality has spread, and
variation in how it is deployed; the extent to which the U.S.
Supreme Court has evolved and resisted similar doctrines; the role
of proportionality in building ongoing 'constitutional dialogues'
with the other branches of government; and the importance of the
principle to the courts of regional human rights regimes. While
there is variance in the intensity of proportionality-based
dialogues, such interactions are today at the very heart of
governance in the modern constitutional state and beyond.
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