By Matthias Klatt
As constitutional legislations globalizes, the search for a standard grammar or 'generic constitutional legislations' turns into extra urgent. Proportionality is likely one of the so much widespread and debatable elements of the trendy, international constitutional discourse. In view of the alarming pressure among the victorious luck of proportionality and the severity of the feedback directed in the direction of it, this publication bargains an in-depth research of the critics of proportionality and demonstrates that their objections opposed to the proportionality try out aren't convincing. It clarifies and extra develops the present theories of proportionality and balancing.
Building upon on Robert Alexy's major rules concept, the e-book indicates a number of ameliorations to this thought. Drawing examples from the case legislation of the ecu court docket of Human Rights, the eu court docket of Justice, and diverse nationwide constitutional courts it illustrates the argument in favour of proportionality and demonstrates its relevance for finding out concrete instances.
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Additional resources for The Constitutional Structure of Proportionality
Example text
Nonetheless, as far as a reconstruction of absolute rights is concerned, the roots of a solution have already been laid down. 92 While the former is, qua being a principle, an optimization requirement and thus subject to balancing, the latter can express an absolute right which is reconstructed as a rule. 93 Teifke has demonstrated, however, that this point needs clarification, since the rule of human dignity is dependent upon the principle of human dignity: the scope of the former can only be established by referring to colliding principles.
Referring to Article 3, the Court states clearly that ‘the Convention prohibits in absolute terms torture or inhuman or degrading treatment’ and ‘makes no provision for exceptions’. 102 Accordingly, the Court does not consider the state’s justifying interest and does not engage in balancing the two principles. Rather, it concludes immediately a violation of Article 3 from the risk of the applicant being treated contrary to Article 3 if he was returned to India. The relevant passage runs: It follows from the above that it is no necessary for the Court to enter into a consideration of the Government’s untested, but no doubt bona fide allegations about the .
91 Eg R Alexy, A Theory of Constitutional Rights, 406. 92 Cf ibid 62–4. 93 Ibid 64. ’, 96 f. 95 R Alexy, A Theory of Constitutional Rights, 64. 96 Ibid, 196. 32 The Constitutional Structure of Proportionality absoluteness remains to be relative to colliding principles, rather than being absolute. There is no such thing as an absolute principle. Nonetheless, the principles theory is capable of integrating the fact that there are conditions under which one can say with a very high degree of certainty that no colliding principles will take priority over the purported absolute right.