Proportionality and Judicial Activism

Fundamental Rights Adjudication in Canada, Germany and South Africa

Nonfiction, Reference & Language, Law, Courts, Constitutional
Cover of the book Proportionality and Judicial Activism by Niels Petersen, Cambridge University Press
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Author: Niels Petersen ISBN: 9781316832509
Publisher: Cambridge University Press Publication: March 2, 2017
Imprint: Cambridge University Press Language: English
Author: Niels Petersen
ISBN: 9781316832509
Publisher: Cambridge University Press
Publication: March 2, 2017
Imprint: Cambridge University Press
Language: English

The principle of proportionality is currently one of the most discussed topics in the field of comparative constitutional law. Many critics claim that courts use the proportionality test as an instrument of judicial self-empowerment. Proportionality and Judicial Activism tests this hypothesis empirically; it systematically and comparatively analyses the fundamental rights jurisprudence of the Canadian Supreme Court, the German Federal Constitutional Court and the South African Constitutional Court. The book shows that the proportionality test does give judges a considerable amount of discretion. However, this analytical openness does not necessarily lead to judicial activism. Instead, judges are faced with significant institutional constraints, as a result of which all three examined courts refrain from using proportionality for purposes of judicial activism.

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The principle of proportionality is currently one of the most discussed topics in the field of comparative constitutional law. Many critics claim that courts use the proportionality test as an instrument of judicial self-empowerment. Proportionality and Judicial Activism tests this hypothesis empirically; it systematically and comparatively analyses the fundamental rights jurisprudence of the Canadian Supreme Court, the German Federal Constitutional Court and the South African Constitutional Court. The book shows that the proportionality test does give judges a considerable amount of discretion. However, this analytical openness does not necessarily lead to judicial activism. Instead, judges are faced with significant institutional constraints, as a result of which all three examined courts refrain from using proportionality for purposes of judicial activism.

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