Proportionality and Judicial Activism - Fundamental Rights Adjudication in Canada, Germany and South Africa

This book uses empirical analysis to show that courts refrain from using the proportionality test as a means of judicial activism.

List of contents

Introduction; 1. Judicial review and the correction of political market failures; 2. The normative debate on balancing; 3. Balancing and judicial legitimacy; 4. Proportionality as a doctrinal construction; 5. The avoidance of balancing; 6. Rationalising balancing; Conclusion: proportionality and the review of legislative rationality.

About the author

Niels Petersen is Professor of Public Law, International Law and EU Law at Westfälische Wilhelms-Universität Münster, Germany. He is the author of a number of articles published in leading comparative constitutional law journals.

Summary

This book analyses the predominant tool of fundamental rights review in the world - the proportionality test. An empirical and comparative analysis of courts in Canada, Germany and South Africa, it shows that courts avoid using proportionality as a means to make policy through legal decision making.

Product details

• Authors: Niels Petersen, Niels (Westfalische Wilhelms-Universitat Petersen, Niels (Westfalische Wilhelms-Universitat Munster Petersen, Petersen Niels
• Publisher: Cambridge University Press ELT
• Languages: English
• Product format: Paperback / Softback
• Released: 31.03.2018
• EAN: 9781316630822
• ISBN: 978-1-316-63082-2
• No. of pages: 259
• Subjects: Social sciences, law, business > Law > International law, foreign law; LAW / Courts, LAW / Constitutional, LAW / Trial Practice, LAW / Judicial Power, Courts & procedure, Legal systems: courts and procedures, Judicial powers, Constitution, Constitutional & administrative law, Constitutional and administrative law: general, Legal systems: judges and judicial powers