Borrowing Justification For Proportionality PDF Download
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Author | : João Andrade Neto |
Publisher | : Springer |
Total Pages | : 340 |
Release | : 2018-11-11 |
Genre | : Law |
ISBN | : 3030022633 |
Download Borrowing Justification for Proportionality Book in PDF, ePub and Kindle
The proportionality test, as proposed in Robert Alexy’s principles theory, is becoming commonplace in comparative constitutional studies. And yet, the question “are courts justified in borrowing proportionality?” has not been expressly put in many countries where judicial borrowings are a reality. This book sheds light on this question and examines the circumstances under which courts are authorized to borrow from alien legal sources to rule on constitutional cases. Taking the Supreme Federal Court of Brazil – and its enthusiastic recourse to proportionality when interpreting the Federal Constitution – as a case study, the book investigates the normative reasons that could justify the court’s attitude and offers a comprehensive overview of its case law on controversial constitutional matters like abortion, same-sex union, racial quotas, and the right to public healthcare. Providing a valuable resource for those interested in comparative constitutional law and legal theory, or curious about Brazilian constitutional law, this book questions the alleged universality of the proportionality test, challenges the premises of Alexy’s principles theory, and discloses more than 68 Brazilian Supreme Court decisions delivered from 2003 to 2018 that would otherwise have remained unknown to an English-speaking audience.
Author | : Ester Herlin-Karnell |
Publisher | : Oxford University Press |
Total Pages | : 352 |
Release | : 2019-10-15 |
Genre | : Law |
ISBN | : 0190889063 |
Download Constitutionalism Justified Book in PDF, ePub and Kindle
Constitutionalism Justified analyzes leading Frankfurt School theorist Rainer Forst's theory of a basic right to justification, unique in combining insights from philosophy, constitutionalism, and legal theory. Drawing upon Kant's critical philosophy and Habermas's discourse theory, he has developed fresh perspectives on core topics like the concept of justice, the relation between modernity and emancipation, and human rights. The contributors to this volume explore Forst's work from three different perspectives: philosophy, legal philosophy, and constitutional theory. The first part of this volume addresses the philosophical argument of the basic right to justification, including the influence of Kantian thought on this right, the deontological versus teleological fundamentals, the tension between moral pluralism and universalism, and the relation of the right to justification with social and distributive justice. The second part covers how the right to justification is embedded in constitutional and legal frameworks. It explores the implications that Forst's right to justification has for conceptualizing constitutional democracy and its foundations, and how the moral right to justification may translate into particular practices of justification that are constrained by a legal framework. This includes discussion of the value of constitutionalism in general, of the relation between the formal structure of democracy and substantive justice, of the inclusion of outsiders to the constitutional setting, and of proportionality analysis and judicial review as forms of justification. The book concludes with Rainer Forst's reply to his interlocutors, making the book a valuable source for future research.
Author | : Moshe Cohen-Eliya |
Publisher | : Cambridge University Press |
Total Pages | : 183 |
Release | : 2013-06-13 |
Genre | : Law |
ISBN | : 1107244757 |
Download Proportionality and Constitutional Culture Book in PDF, ePub and Kindle
Although the most important constitutional doctrine worldwide, a thorough cultural and historical examination of proportionality has not taken place until now. This comparison of proportionality with its counterpart in American constitutional law - balancing - shows how culture and history can create deep differences in seemingly similar doctrines. Owing to its historical origin in Germany, proportionality carries to this day a pro-rights association, while the opposite is the case for balancing. In addition, European legal and political culture has shaped proportionality as intrinsic to the state's role in realizing shared values, while in the United States a suspicion-based legal and political culture has shaped balancing in more pragmatic and instrumental terms. Although many argue that the USA should converge on proportionality, the book shows that a complex web of cultural associations make it an unlikely prospect.
Author | : Grant Huscroft |
Publisher | : Cambridge University Press |
Total Pages | : 433 |
Release | : 2014-04-21 |
Genre | : Law |
ISBN | : 1139952870 |
Download Proportionality and the Rule of Law Book in PDF, ePub and Kindle
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.
Author | : Rosalind Dixon |
Publisher | : Oxford University Press |
Total Pages | : 241 |
Release | : 2021 |
Genre | : Authoritarianism |
ISBN | : 0192893769 |
Download Abusive Constitutional Borrowing Book in PDF, ePub and Kindle
Law is fast globalizing as a field, and many lawyers, judges and political leaders are engaged in a process of comparative borrowing. But this new form of legal globalization has darksides: it is not just a source of inspiration for those seeking to strengthen and improve democratic institutions and policies. It is increasingly an inspiration - and legitimation device - for those seeking to erode democracy by stealth, under the guise of a form of faux liberal democratic cover. Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy outlines this phenomenon, how it succeeds, and what we can do to prevent it. This book address current patterns of democratic retrenchment and explores its multiple variants and technologies, considering the role of legitimating ideologies that help support different modes of abusive constitutionalism. An important contribution to both legal and political scholarship, this book will of interest to all those working in the legal and political disciplines of public law, constitutional theory, political theory, and political science.
Author | : Mordechai Kremnitzer |
Publisher | : Cambridge University Press |
Total Pages | : 689 |
Release | : 2020-04-30 |
Genre | : Law |
ISBN | : 1108497586 |
Download Proportionality in Action Book in PDF, ePub and Kindle
A comparative and empirical analysis of proportionality in the case law of six constitutional and supreme courts.
Author | : Francisca Pou-Giménez |
Publisher | : Cambridge University Press |
Total Pages | : 353 |
Release | : 2022-11-03 |
Genre | : Law |
ISBN | : 1009201808 |
Download Proportionality and Transformation Book in PDF, ePub and Kindle
This is the first book on the theory and practice of proportionality in Latin American constitutional law.
Author | : M Rafiqul Islam |
Publisher | : Springer Nature |
Total Pages | : 439 |
Release | : 2023-07-25 |
Genre | : Law |
ISBN | : 9819925797 |
Download The Constitutional Law of Bangladesh Book in PDF, ePub and Kindle
This book provides a supportive lending hand to researchers of constitutional law worldwide about the constitutional law of Bangladesh. Moreover, this book discusses the evolution and development of the constitutional law of Bangladesh over 50 years from its embryonic stage with reference to comparative constitutional law. This book is a very useful resource for the comparative constitutional researchers as readers will be able to easily interpret the constitutional law of Bangladesh from national, regional and global constitutional law perspectives. This book celebrates the fiftieth anniversary of the Constitution, the first of its kind to portray the journey of constitutionalism in Bangladesh comprehensively with intellectual observations and palatable recommendations for improvement. This book looks back to the constituent assembly debates, intention of the constitution makers and how have those dreams and aspirations have come into realities, what goals have been achieved, what caused some failures, and what should be its future directions. At such a momentous point in history, it is imperative that its native and foreign constitutional authoritative voices scholarly assess the constitutional design, understand the reasons for its successes and occasional failures, and ventilate their views towards its progressive development to elevate it to a new height in the 21st century and beyond. The book chapters discuss not only the text of the constitution and some judicial precedents, rather involve in a much larger task of unveiling the interpretative approach of the Constitution from a comparative constitutional law perspective. This book shall project the future roadmap for the journey of constitutionalism in Bangladesh throughout all chapters offering policy recommendations for the revision of the Constitution.
Author | : Conrado Hübner Mendes |
Publisher | : Oxford University Press |
Total Pages | : 970 |
Release | : 2022 |
Genre | : Law |
ISBN | : 0198786905 |
Download The Oxford Handbook of Constitutional Law in Latin America Book in PDF, ePub and Kindle
Constitutional law in Latin America embodies a mosaic of national histories, political experiments, and institutional transitions. No matter how distinctive these histories and transitions might be, there are still commonalities that transcend the mere geographical contiguity of these countries. This Handbook depicts the constitutional landscape of Latin America by shedding light on its most important differences and affinities, qualities and drawbacks, and by assessing its overall standing in the global enterprise of democratic constitutionalism. It engages with substantive and methodological conundrums of comparative constitutional law in the region, drawing meaningful comparisons between constitutional traditions. The volume is divided into two main parts. Part I focuses on exploring the constitutions for seventeen jurisdictions, offering a comprehensive country-by-country critique of the historical foundations, institutional architecture, and rights-based substantive identity of each constitution. Part II presents comparative analyses on the most controversial constitutional topics of the region, exploring central concepts in institutions and rights. The Oxford Handbook of Constitutional Law in Latin America is an essential resource for scholars and students of comparative constitutional law, and Latin American politics and history Written by leading experts, it comprehensively examines constitutions, controversies, institutions, and constitutional rights in Latin America.
Author | : Matthias Klatt |
Publisher | : Oxford University Press on Demand |
Total Pages | : 203 |
Release | : 2012-07-19 |
Genre | : Law |
ISBN | : 0199662460 |
Download The Constitutional Structure of Proportionality Book in PDF, ePub and Kindle
Proportionality is one of the most important principles in constitutional law, relevant throughout the law and in jurisdictions worldwide. Setting out the 'state of the art' in proportionality doctrine, this book combines theoretical reconstruction with case-law examples, defending and developing the dominant model of proportionality.