Proportionality in Law: An Analytical Perspective

ISBN-13: 9783319896465 / Angielski / Twarda / 2018 / 192 str.

David Duarte; Jorge Silva Sampaio

Opis

This book addresses the principle of proportionality, which is currently one of the most important instruments of judicial review, from both analytical and theory of law perspectives. As such, the analysis provided is far more comprehensive and can be applied to all areas of law, not just constitutional law.

Spis treści

Part I The principle of proportionality and fundamental rights: Jan Sieckmann, Proportionality as a human rights principle.- Laura Clérico, Proportionality in social rights adjudication: making it workable.- David Duarte, Gains and losses in balancing social rights.- Jorge Silva Sampaio, Proportionality in its narrow sense and measuring the intensity of restrictions on fundamental rights.- Luka Burazin, Conflicts between fundamental rights norms.- Part II Proportionality, balancing and legal principles: Giovanni Sartor, Balancing principles and making rules.- Pedro Moniz Lopes, Balancing principles and a fortiori reasoning.- Rúben Ramiao, Some fundamental problems concerning Alexy's notion of legal principles.- David Martínez Zorrilla, Some thoughts about the limits of Alexy's conception of principles and balancing.

O autorze

​David Duarte is a Professor at the Faculty of Law of the University of Lisbon where he was awarded his PhD. His main fields of research are legal theory, fundamental rights, and administrative law. He is in the Board of Directors of the Portuguese Association for Legal Theory, Legal Philosophy and Social Theory (ATFD). Published works such as Structuring Addressees in Fundamental Rights Norms: An Application. Fundamental Rights, Justification and Interpretation. Edited by Kenneth Himma and Bojan Spaic. Eleven International Publishing, 2016; Analogy and Balancing: The Partial Reducibility Thesis and its Problems. Revus. Journal for Constitutional Law and Philosophy of Law, 25, 1-11; 2015, An Experimental Essay on the Antecedent and Its Formulation. i-Lex, 16. 37-60.

Jorge Silva Sampaio is a Ph.D. researcher and a guest lecturer at the University of Lisbon School of Law, as well as an associate researcher at CIDP—Lisbon Centre for Research in Public Law. His main fields of research are legal theory and legal science, constitutional and administrative law and human rights. He is also a Law clerk at the Portuguese Constitutional Court. He has authored several papers and books on public law and legal theory, including “The Contextual Nature of Proportionality and Its Relation with the Intensity of Judicial Review“, in Judicial Activism, Springer, 2015; O controlo jurisdicional das políticas públicas de direitos sociais, Coimbra Editora, 2015.

Blurb

This book addresses the principle of proportionality, which is currently one of the most important instruments of judicial review, from both analytical and theory of law perspectives. As such, the analysis provided is far more comprehensive and can be applied to all areas of law, not just constitutional law. On the one hand, the volume offers a broad perspective on several aspects related to proportionality, such as its structure, the balancing methodology and the distinction between rules and principles. On the other, it provides an innovative, normativist and analytical approach to proportionality, helping readers understand its structure and behaviour.