A Critique of Proportionality and Balancing

by Francisco J. Urbina

Overview

The principle of proportionality, which has become the standard test for adjudicating human and constitutional rights disputes in jurisdictions worldwide has had few critics. Proportionality is generally taken for granted or enthusiastically promoted or accepted with minor qualifications. A Critique of Proportionality and Balancing presents a frontal challenge to this orthodoxy. It provides a comprehensive critique of the proportionality principle, and particularly of its most characteristic component, balancing. Divided into three parts, the book presents arguments against the proportionality test, critiques the view of rights entailed by it, and proposes an alternative understanding of fundamental rights and their limits.

Product Details

ISBN-13:	9781107175068
Publisher:	Cambridge University Press
Publication date:	01/26/2017
Pages:	288
Product dimensions:	5.98(w) x 9.02(h) x 0.71(d)

About the Author

Francisco J. Urbina is Assistant Professor of Law at Pontificia Universidad Catolica de Chile. His research focuses on human rights, legal reasoning, and public law.

Table of Contents

1. Introduction; Part I: 2. The maximisation account of proportionality; 3. The incommensurability objection; 4. Why proportionality?; 5. Proportionality, rights, and legitimate interests; Part II: 6. Proportionality as unconstrained moral reasoning; 7. The need for legal direction in adjudication; 8. Proportionality and the problems of legally unaided adjudication; Part III: 9. Legal human rights.