Proportionality and Facts in Constitutional Adjudication
Proportionality and Facts in Constitutional Adjudication

Author: Anne Carter

Publisher: Bloomsbury Publishing

Published: 2022-01-27

Total Pages: 238

ISBN-13: 1509936998

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This book considers the relationship between proportionality and facts in constitutional adjudication. Analysing where facts arise within each of the three stages of the structured proportionality test – suitability, necessity, and balancing – it considers the nature of these 'facts' vis-à-vis the facts that arise in the course of ordinary litigation. The book's central focus is on how proportionality has been applied by courts in practice, and it draws on the comparative experience of four jurisdictions across a range of legal systems. The central case study of the book is Australia, where the embryonic and contested nature of proportionality means it provides an illuminating study of how facts can inform the framing of constitutional tests. The rich proportionality jurisprudence from Germany, Canada, and South Africa is used to contextualise the approach of the High Court of Australia and to identify future directions for proportionality in Australia, at a time when the doctrine is in its formative stages. The book has three broad aims: First, it considers the role of facts within proportionality reasoning. Second, it offers procedural insights into fact-finding in constitutional litigation. Third, the book's analysis of the dynamic Australian case-law on proportionality means it also serves to clarify the nature and status of proportionality in Australia at a critical moment. Since the 2015 decision of McCloy v New South Wales, where four justices supported the introduction of a structured three-part test of proportionality, the Court has continued to disagree about the utility of such a test. These developments mean that this book, with its doctrinal and comparative approach, is particularly timely.

PROPORTIONALITY AND FACTS IN CONSTITUTIONAL ADJUDICATION
PROPORTIONALITY AND FACTS IN CONSTITUTIONAL ADJUDICATION

Author: DR ANNE. CARTER

Publisher:

Published: 2022

Total Pages: 272

ISBN-13: 9781509937011

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"This book considers the relationship between proportionality and facts in constitutional adjudication. Analysing where facts arise within each of the three stages of the structured proportionality test - suitability, necessity, and balancing - it considers the nature of these 'facts' vis-à-vis the facts that arise in the course of ordinary litigation. The book's central focus is on how proportionality has been applied by courts in practice, and it draws on the comparative experience of four jurisdictions across a range of legal systems. The central case study of the book is Australia, where the embryonic and contested nature of proportionality means it provides an illuminating study of how facts can inform the framing of constitutional tests. The rich proportionality jurisprudence from Germany, Canada, and South Africa is used to contextualise the approach of the High Court of Australia and to identify future directions for proportionality in Australia, at a time when the doctrine is in its formative stages. The book has three broad aims: First, it considers the role of facts within proportionality reasoning. Second, it offers procedural insights into fact-finding in constitutional litigation. Third, the book's analysis of the dynamic Australian case-law on proportionality means it also serves to clarify the nature and status of proportionality in Australia at a critical moment. Since the 2015 decision of McCloy v New South Wales , where four justices supported the introduction of a structured three-part test of proportionality, the Court has continued to disagree about the utility of such a test. These developments mean that this book, with its doctrinal and comparative approach, is particularly timely."--

Proportionality and Facts in Constitutional Adjudication
Proportionality and Facts in Constitutional Adjudication

Author: Anne Carter

Publisher: Bloomsbury Publishing

Published: 2022-01-27

Total Pages: 272

ISBN-13: 1509937005

DOWNLOAD EBOOK

This book considers the relationship between proportionality and facts in constitutional adjudication. Analysing where facts arise within each of the three stages of the structured proportionality test – suitability, necessity, and balancing – it considers the nature of these 'facts' vis-à-vis the facts that arise in the course of ordinary litigation. The book's central focus is on how proportionality has been applied by courts in practice, and it draws on the comparative experience of four jurisdictions across a range of legal systems. The central case study of the book is Australia, where the embryonic and contested nature of proportionality means it provides an illuminating study of how facts can inform the framing of constitutional tests. The rich proportionality jurisprudence from Germany, Canada, and South Africa is used to contextualise the approach of the High Court of Australia and to identify future directions for proportionality in Australia, at a time when the doctrine is in its formative stages. The book has three broad aims: First, it considers the role of facts within proportionality reasoning. Second, it offers procedural insights into fact-finding in constitutional litigation. Third, the book's analysis of the dynamic Australian case-law on proportionality means it also serves to clarify the nature and status of proportionality in Australia at a critical moment. Since the 2015 decision of McCloy v New South Wales, where four justices supported the introduction of a structured three-part test of proportionality, the Court has continued to disagree about the utility of such a test. These developments mean that this book, with its doctrinal and comparative approach, is particularly timely.

Local Meanings of Proportionality
Local Meanings of Proportionality

Author: Afroditi Marketou

Publisher: Cambridge University Press

Published: 2021-07-22

Total Pages: 423

ISBN-13: 1108834485

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A strong counter-argument to the universalising discourse on proportionality and global constitutionalism.

Facts in Public Law Adjudication
Facts in Public Law Adjudication

Author: Joe Tomlinson

Publisher: Bloomsbury Publishing

Published: 2023-10-19

Total Pages: 325

ISBN-13: 1509957405

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This book explores critical issues about how courts engage with questions of fact in public law adjudication. Although the topic of judicial review - the mechanism through which individuals can challenge governmental action - continues to generate sustained interest amongst constitutional and administrative lawyers, there has been little attention given to questions of fact. This is so despite such determinations of fact often being hugely important to the outcomes and impacts of public law adjudication. The book brings together scholars from across the common law world to identify and explore contested issues, common challenges, and gaps in understanding. The various chapters consider where facts arise in constitutional and administrative law proceedings, the role of the courts, and the types of evidence that might assist courts in determining legal issues that are underpinned by complex and contested social or policy questions. The book also considers whether the existing laws and practices surrounding evidence are sufficient, and how other disciplines might assist the courts. The book reconnects the key practical issues surrounding evidence and facts with the lively academic debate on judicial review in the common law world; it therefore contributes to an emerging area of scholarly debate and also has practical implications for the conduct of litigation and government policy-making.

Proportionality and the Rule of Law
Proportionality and the Rule of Law

Author: Grant Huscroft

Publisher: Cambridge University Press

Published: 2014-04-21

Total Pages: 433

ISBN-13: 1139952870

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To speak of human rights in the twenty-first century is to speak of proportionality. Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, South Africa, and the United States, as well as the jurisprudence of treaty-based legal systems such as the European Convention on Human Rights. Proportionality provides a common analytical framework for resolving the great moral and political questions confronting political communities. But behind the singular appeal to proportionality lurks a range of different understandings. This volume brings together many of the world's leading constitutional theorists - proponents and critics of proportionality - to debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning. Their essays provide important new perspectives on this leading doctrine in human rights law.

Comparative Constitutional Law
Comparative Constitutional Law

Author: Tom Ginsburg

Publisher: Edward Elgar Publishing

Published: 2011-01-01

Total Pages: 681

ISBN-13: 0857931210

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This landmark volume of specially commissioned, original contributions by top international scholars organizes the issues and controversies of the rich and rapidly maturing field of comparative constitutional law. Divided into sections on constitutional design and redesign, identity, structure, individual rights and state duties, courts and constitutional interpretation, this comprehensive volume covers over 100 countries as well as a range of approaches to the boundaries of constitutional law. While some chapters reference the text of legal instruments expressly labeled constitutional, others focus on the idea of entrenchment or take a more functional approach. Challenging the current boundaries of the field, the contributors offer diverse perspectives - cultural, historical and institutional - as well as suggestions for future research. A unique and enlightening volume, Comparative Constitutional Law is an essential resource for students and scholars of the subject.

Proportionality in Action
Proportionality in Action

Author: Mordechai Kremnitzer

Publisher: Cambridge University Press

Published: 2020-04-30

Total Pages: 689

ISBN-13: 1108497586

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A comparative and empirical analysis of proportionality in the case law of six constitutional and supreme courts.

Judicial Power
Judicial Power

Author: Christine Landfried

Publisher: Cambridge University Press

Published: 2019-02-07

Total Pages: 411

ISBN-13: 1316999084

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The power of national and transnational constitutional courts to issue binding rulings in interpreting the constitution or an international treaty has been endlessly discussed. What does it mean for democratic governance that non-elected judges influence politics and policies? The authors of Judicial Power - legal scholars, political scientists, and judges - take a fresh look at this problem. To date, research has concentrated on the legitimacy, or the effectiveness, or specific decision-making methods of constitutional courts. By contrast, the authors here explore the relationship among these three factors. This book presents the hypothesis that judicial review allows for a method of reflecting on social integration that differs from political methods, and, precisely because of the difference between judicial and political decision-making, strengthens democratic governance. This hypothesis is tested in case studies on the role of constitutional courts in political transformations, on the methods of these courts, and on transnational judicial interactions.

Deference in Human Rights Adjudication
Deference in Human Rights Adjudication

Author: Cora Chan

Publisher: Oxford University Press

Published: 2024-07-25

Total Pages: 225

ISBN-13: 0198921667

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In human rights adjudication, courts sometimes face issues that they lack the expertise or constitutional legitimacy to resolve. One way of dealing with such issues is to 'defer', or accord a margin of appreciation, to the judgments of public authorities. This raises two important questions: what devices courts should use to exercise deference, and how deference can be made more workable for judges and predictable for litigants. Combining in-depth conceptual analysis with practice in a broad range of jurisdictions, Deference in Human Rights Adjudication answers these questions. It introduces six devices for deference (namely, the burden of proof, standard of proof, standard of review, giving of weight, choice of interpretation, and choice of remedy), analyzes how courts should choose amongst them, and proposes techniques for rendering deference practicable. The book has two distinctive features. First, it engages with the jurisprudence of six common law jurisdictions that apply a structured proportionality test in rights adjudication, namely, Canada, Hong Kong, Ireland, Israel, New Zealand, and the United Kingdom. Second, it offers guidelines for judges who wish to apply its theoretical arguments. As such, Deference in Human Rights Adjudication will enable human rights adjudication to be more principled and in line with the rule of law and separation of powers. Insightful and pioneering, this book will be an important reference for researchers, teachers, and students of constitutional theory, comparative constitutional law, and human rights law around the world. It will also assist practitioners, judges, and policymakers who have to grapple with issues of deference in adjudication.