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Proportionality and Judicial Activism - Fundamental Rights Adjudication in Canada, Germany and South Africa (Hardcover)
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Proportionality and Judicial Activism - Fundamental Rights Adjudication in Canada, Germany and South Africa (Hardcover)
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The principle of proportionality is currently one of the most
discussed topics in the field of comparative constitutional law.
Many critics claim that courts use the proportionality test as an
instrument of judicial self-empowerment. Proportionality and
Judicial Activism tests this hypothesis empirically; it
systematically and comparatively analyses the fundamental rights
jurisprudence of the Canadian Supreme Court, the German Federal
Constitutional Court and the South African Constitutional Court.
The book shows that the proportionality test does give judges a
considerable amount of discretion. However, this analytical
openness does not necessarily lead to judicial activism. Instead,
judges are faced with significant institutional constraints, as a
result of which all three examined courts refrain from using
proportionality for purposes of judicial activism.
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