Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach
Alec Stone Sweet and Jud Mathews
Abstract
This book focuses 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 do ... More
This book focuses 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 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 they 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 analyze: 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 heart of governance in the modern constitutional state and beyond.
Keywords:
judicial governance,
proportionality,
judicial review,
system of constitutional justice,
constitutional rights,
diffusion,
judicial dialogues,
limitations clauses
Bibliographic Information
Print publication date: 2019 |
Print ISBN-13: 9780198841395 |
Published to Oxford Scholarship Online: July 2019 |
DOI:10.1093/oso/9780198841395.001.0001 |
Authors
Affiliations are at time of print publication.
Alec Stone Sweet, author
Saw Swee Hock Centennial Professor of Law, National University of Singapore; Senior Research Fellow, the Yale Law School
Jud Mathews, author
Associate Professor of Law at Penn State Law and a Faculty Affiliate of Penn State's School of International Affairs
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