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Vol 21 No 9 Sept/Oct 2016

Book of the Month

Cover of Goode on Commercial Law

Goode on Commercial Law

Edited by: Ewan McKendrick
Price: £170.00

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The Constitutional Structure of Proportionality

ISBN13: 9780199662463
Published: July 2012
Publisher: Oxford University Press
Country of Publication: UK
Format: Hardback
Price: £61.00

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As constitutional law globalizes, the quest for a common grammar or 'generic constitutional law' becomes more pressing. Proportionality is one of the most prominent and controversial components of the modern, global constitutional discourse.

In view of the alarming tension between the triumphant success of proportionality and the severity of the criticism directed towards it, this book offers an in-depth analysis of the critics of proportionality and demonstrates that their objections against the proportionality test are not convincing. It clarifies and further develops the current theories of proportionality and balancing.

Building upon on Robert Alexy's predominant principles theory, the book suggests several modifications to this theory. Drawing examples from the case law of the European Court of Human Rights, the European Court of Justice, and various national constitutional courts it illustrates the argument in favour of proportionality and demonstrates its relevance for deciding concrete cases.

Constitutional and Administrative Law
1. The Structure of the Proportionality Test
2. Rights, Interests, and Trumps
3. The Method of Balancing
4. Discretion and Deference
5. Positive Rights and Proportionality Analysis
6. Epistemic Reliabilities in Proportionality Analysis
7. Case Analysis: Otto-Preminger-Institut v Austria
8. Results