The Concept of Proportionality in Public Law

The Concept of Proportionality in Public Law
Author: CHUNG Wai Man, Franco
Publisher: City University of HK Press
Total Pages: 696
Release: 2020-06-30
Genre: Law
ISBN: 9629373785

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Proportionality is a German, and thus continental European, concept in public law that is applied by both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). The principle specifies that measures adopted by executive authorities should not exceed the limits of what is appropriate and necessary in order to achieve legitimate objectives in the interest of the public. Using a functional comparative approach, this book evaluates the extent to which proportionality has been integrated into the English and Hong Kong judicial systems by comparing case law in these courts with that of the CJEU and the ECtHR. The text also reviews the development of proportionality and presents a topical understanding of why its adoption and application have encountered difficulties, particularly regarding socio-economic rights, in some jurisdictions, such as the United Kingdom and Hong Kong. Written by a scholar with experience from both within the Hong Kong judicial system and from international research, this book is the first all-encompassing reference for legal practitioners worldwide.

Comparative Administrative Law

Comparative Administrative Law
Author: Frank J. Goodnow
Publisher:
Total Pages: 724
Release: 1893
Genre: Administrative law
ISBN:

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Proportionality in Law

Proportionality in Law
Author: David Duarte
Publisher: Springer
Total Pages: 200
Release: 2018-07-09
Genre: Law
ISBN: 9783319896465

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This book addresses the principle of proportionality, which is currently one of the most important instruments of judicial review, from both analytical and theory of law perspectives. As such, the analysis provided is far more comprehensive and can be applied to all areas of law, not just constitutional law. On the one hand, the volume offers a broad perspective on several aspects related to proportionality, such as its structure, the balancing methodology and the distinction between rules and principles. On the other, it provides an innovative, normativist and analytical approach to proportionality, helping readers understand its structure and behaviour.

Local Meanings of Proportionality

Local Meanings of Proportionality
Author: Afroditi Marketou
Publisher: Cambridge University Press
Total Pages: 423
Release: 2021-07-22
Genre: Law
ISBN: 1108834485

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A strong counter-argument to the universalising discourse on proportionality and global constitutionalism.

The Principle of Proportionality in European Law:A Comparative Study

The Principle of Proportionality in European Law:A Comparative Study
Author: Nicholas Emiliou
Publisher: Springer
Total Pages: 332
Release: 1996-02-23
Genre: Law
ISBN:

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The main objective of this study is to present a comparative legal analysis of proportionality. It provides a close examination of the key areas in which this principle has been applied, both at the national and supranational levels. The whole work is placed in the context of transformation of public law in the twentieth century. As many important general principles of law as applied by the Court of Justice have been borrowed from German and French law, a comparative study of the various forms which this principle has assumed in both German and French public law is presented. The book then offers an in-depth analysis of the application and impact of the principle of proportionality in EC law. The introduction and development of this principle by the Court of Justice represents one of the most striking examples of the interaction between the Community and national legal systems. It also illustrates the character of Community law as developed by the Court and the law-making function of the latter.

Proportionality and Judicial Activism

Proportionality and Judicial Activism
Author: Niels Petersen
Publisher: Cambridge University Press
Total Pages: 261
Release: 2017-03-02
Genre: Law
ISBN: 1107177987

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

Proportionality Principles in American Law

Proportionality Principles in American Law
Author: E. Thomas Sullivan
Publisher: Oxford University Press
Total Pages: 297
Release: 2008-12-05
Genre: Law
ISBN: 0199886695

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From the ancient origins of Just War doctrine to utilitarian and retributive theories of punishment, concepts of proportionality have long been an instrumental part of the rule of law and an essential check on government power. These concepts all embody the fundamental value that government and private actions should not be demonstrably excessive relative to their moral and practical justifications. In the American legal system, despite frequent though unacknowledged use of proportionality principles, there is no general theory of what permits courts to invalidate intrusive measures. In Proportionality Principles in American Law, two renowned legal scholars seek to advance such a theory. They argue that standards of review should be more clearly and precisely defined, and that in most circumstances every intrusive government measure which limits or threatens individual rights should undergo some degree of proportionality review. Across a wide range of legal contexts, E. Thomas Sullivan and Richard S. Frase identify three basic ways that government measures and private remedies have been found to be disproportionate: relative to fault; relative to alternative means of achieving the same practical purposes; and relative to the likely practical benefits of the measure or remedy. Using this structure, the book examines the origins and contemporary uses of proportionality principles in public law, civil liberties, and the criminal justice system, emphasizing the utility of proportionality principles to guide judicial review of excessive government measures. By constructing a new framework and a general theory for constitutional judicial review, Proportionality Principles in American Law will help courts more consistently and effectively apply proportionality principles to better serve their vital roles as guardians of individual rights and liberties.

Proportionality Analysis and Models of Judicial Review

Proportionality Analysis and Models of Judicial Review
Author: Benedikt Pirker
Publisher:
Total Pages: 0
Release: 2013
Genre: Judicial review
ISBN: 9789089521415

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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)

Proportionality and the Rule of Law

Proportionality and the Rule of Law
Author: Grant Huscroft
Publisher: Cambridge University Press
Total Pages: 433
Release: 2014-04-21
Genre: Law
ISBN: 1139952870

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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.

Proportionality and Deference Under the UK Human Rights Act

Proportionality and Deference Under the UK Human Rights Act
Author: Alan D. P. Brady
Publisher: Cambridge University Press
Total Pages: 311
Release: 2012-05-03
Genre: Law
ISBN: 1107013003

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