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    This article has been cited by the following publications. This list is generated based on data provided by CrossRef.

    Kuo, Ming-Sung 2016. In the Shadow of Judicial Supremacy: Putting the Idea of Judicial Dialogue in Its Place. Ratio Juris, Vol. 29, Issue. 1, p. 83.


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    LANG, ANTHONY F. KUMM, MATTIAS WIENER, ANTJE TULLY, JAMES and MADURO, MIGUEL POIARES 2013. Interdisciplinarity: Challenges and opportunities. Global Constitutionalism, Vol. 2, Issue. 01, p. 1.


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Proportionality and freedom—An essay on method in constitutional law

  • VLAD PERJU (a1)
  • DOI: http://dx.doi.org/10.1017/S2045381712000044
  • Published online: 06 June 2012
Abstract
Abstract

This article presents a functional explanation of why proportionality has become one of the most successful legal transplants in contemporary constitutional law. It argues that proportionality helps judges mitigate what Robert Cover called the ‘inherent difficulty presented by the violence of the state’s law acting upon the free interpretative process’. More than alternative methods, proportionality calibrates the violence that the justification of state coercion inflicts on private (non-official) jurisgenerative interpretative processes in constitutional cases. The first three sections show, through an analysis of different constitutional styles which I label Doric, Ionic and Corinthian, how proportionality seeks to place a non-deontological conception of rights within a categorical structure of formal legal analysis. This method aims to synthesize fidelity to form and institutional structure (thesis) with ‘fact-sensitivity’ to contexts in which specific controversies arise (antithesis). Proportionality positions judges vis-à-vis the parties and the parties in relation to one another differently from other constitutional methods. The next sections distinguish between constitutional perception and reality. While the normative appeal of proportionality can be traced to the perception of its integrative aims, in reality, judicial technique does not entirely live up to those aims. Proportionality succumbs to pressures from the centrifugal forces of universalism and particularism that it seeks to integrate. The final section draws on the works of Kant and Arendt and discusses the implications of an approach to constitutional method such as that reflected in the advent of proportionality for the project of constitutionalism more generally.

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*Email: perju@bc.edu
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This list contains references from the content that can be linked to their source. For a full set of references and notes please see the PDF or HTML where available.

Mattias Kumm , ‘Constitutional Rights as Principles: On the Structure and Domain of Constitutional Justice’ (2003) 2 International Journal of Constitutional Law 574–96, 595.

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Jeremy Waldron , ‘Kant’s Legal Positivism’ (1996) 109 Harvard Law Review 1535

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Global Constitutionalism
  • ISSN: 2045-3817
  • EISSN: 2045-3825
  • URL: /core/journals/global-constitutionalism
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