Comparative Constitutional Theory
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Comparative Constitutional Theory

Edited by Gary Jacobsohn and Miguel Schor

The need for innovative thinking about alternative constitutional experiences is evident, and readers of Comparative Constitutional Theory will find in its pages a compendium of original, theory-driven essays. The authors use a variety of theoretical perspectives to explore the diversity of global constitutional experience in a post-1989 world prominently marked by momentous transitions from authoritarianism to democracy, by multiple constitutional revolutions and devolutions, by the increased penetration of international law into national jurisdictions, and by the enhancement of supra-national institutions of governance.
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Chapter 12: Beyond the principle of proportionality

Victor Ferreres Comella

Abstract

Abstract: In many countries, courts resort to the principle of proportionality to assess the validity of governmental measures that restrict fundamental rights. This principle asks courts to check whether the measures under review are suitable and necessary to achieve legitimate ends, and whether the burdens they impose are proportional to the benefits they produce. This principle is often celebrated on the grounds that it helps realize a culture of justification, one in which democratic authorities are required to offer public reasons to support decisions that affect fundamental rights. Proportionality, however, cannot be reduced to mechanical tests. Unless judges work out a substantive theory of rights, they cannot properly address the many questions that emerge when controversies about rights are adjudicated.

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