Although the most important constitutional doctrine worldwide, a thorough cultural and historical examination of proportionality has not taken place until now. This comparison of proportionality with its counterpart in American constitutional law – balancing – shows how culture and history can create deep differences in seemingly similar doctrines. Owing to its historical origin in Germany, proportionality carries to this day a pro-rights association, while the opposite is the case for balancing. In addition, European legal and political culture has shaped proportionality as intrinsic to the state's role in realizing shared values, while in the United States a suspicion-based legal and political culture has shaped balancing in more pragmatic and instrumental terms. Although many argue that the USA should converge on proportionality, the book shows that a complex web of cultural associations make it an unlikely prospect.
• Use of a broad set of materials from a range of disciplines makes this book relevant to political scientists and sociologists as well as constitutional lawyers • Sheds light on complex processes within constitutional law • Engages with the emerging legal field of global constitutionalism, thereby locating proportionality in the age of globalization
Contents
Introduction; 1. Exposition; 2. History; 3. Political culture; 4. Epistemology; 5. Justification and authority; 6. Intent and impact; 7. The future; Conclusion.
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