The Constitutional Structure of Proportionality

by Matthias Klatt, Moritz Meister

Overview

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.

Product Details

ISBN-13:	9780199662463
Publisher:	Oxford University Press
Publication date:	09/08/2012
Pages:	204
Product dimensions:	6.20(w) x 9.30(h) x 0.80(d)

About the Author

Matthias Klatt is Professor of Public Law, EU Law, Public International Law, and Jurisprudence at the University of Hamburg. He specializes in the philosophy of law and his first book, Making the Law Explicit: The Normativity of Legal Argumentation, was published by Hart in 2008. He is the editor of the forthcoming Institutionalized Reason: The Jurisprudence of Robert Alexy (OUP, 2012).


Moritz Meister is a Lecturing Tutor in Public Law at the University of Hamburg and a trainee lawyer at the Higher Regional Court, Hamburg. He was a student of Matthais Klatt and graduated summa cum laude with a doctorate in law from the University of Hamburg. His dissertation was published by Duncker and Humblot in 2011.

Table of Contents

List of Tables ix

List of Cases xi

List of Formulae xiii

List of Variables xv

Introduction 1

1 The Structure of the Proportionality Test 7

I The four proportionality rules 8

II The weight formula 10

2 Rights, Interests, and Trumps 15

I Interest model 16

II Strong trump model 17

III Medium trump model 22

IV Weak trump model 23

V Results 44

3 The Method of Balancing 45

I Definitional generosity 45

II Rule of law 49

III The impact of morals on balancing 51

IV Balancing as calculation 57

V Incommensurability 58

VI Inviolable core content 66

VII Correctness and adequateness 68

VIII Overemphasis of balancing 70

IX Results 72

4 Discretion and Deference 75

I Structural discretion 79

II Epistemic discretion 80

III Results 84

5 Positive Rights and Proportionality Analysis 85

I Introduction 85

II Negative rights and the proportionality test 90

III Positive rights and the proportionality test 94

IV Positive rights and the margin of appreciation 101

V Results 108

6 Epistemic Reliabilities in Proportionality Analysis 109

I Introduction 109

II Balancing and principles theory 110

III Empirical epistemic discretion 111

IV Normative epistemic discretion 123

V Epistemic discretion and judicial review 135

VI Results 147

7 Case Analysis: Otto-Preminger-Institut v Austria 149

I The judgment 150

II Proportionality applied 153

III Results 165

8 Results 167

Bibliography 173

Index of Names 181

Index of Subjects 182