Proportionality and the Rule of Law

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.1. Introduction Grant Huscroft, Bradley W. Miller and Gregoire Webber; Part I. Conceptions of Proportionality: 2. The lost meaning of proportionality Martin Luteran; 3. Proportionality is dead: long live proportionality! Alison L. Young; 4. Human dignity and proportionality: deontic pluralism in balancing Mattias Kumm and Alec D. Walen; 5. Between reason and strategy: some reflections on the normativity of proportionality George Pavlakos; Part II. Proportionality and Rights: 6. On the loss of rights Gregoire Webber; 7. Proportionality and rights inflation Kai Moller; 8. Proportionality and the question of weight Frederick Schauer; 9. Proportionality and the relevance of interpretation Grant Huscroft; Part III. Proportionality and Justification: 10. Democracy, legality and proportionality T. R. S. Allan; 11. Proportionality and deference in a culture of justification David Dyzenhaus; 12. Proportionality and democratic constitutionalism Stephen Gardbaum; 13. The rationalism of proportionality's culture of justification Mark Antaki; Part IV. Proportionality and Reasoning: 14. Proportionality and incommensurability Timothy Endicott; 15. Legislating proportionately Richard Ekins; 16. Proportionality's blind spot: 'neutrality' and political philosophy Bradley W. Miller; 17. Mapping the American debate over balancing Iddo Porat.