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


  • Author: Niels Petersen, Westfälische Wilhelms-Universität Münster, Germany
  • Date Published: June 2018
  • availability: Available
  • format: Paperback
  • isbn: 9781316630822

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About the Authors
  • 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.

    • Provides the first systematic empirical analysis of the use of the proportionality test in three constitutional courts, informing the reader on how these courts use proportionality in a comprehensive and comparable analysis
    • Offers the first analysis of proportionality jurisprudence of the German Constitutional Court in the English language, enabling non-German readers to review this examination
    • Contributes to the discussion on judicial activism through judicial review, providing readers with a focused analysis of specific doctrinal framework and its potential for judicial activism
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    Reviews & endorsements

    'Niels Peterson's Proportionality and Judicial Activism is a very timely and accomplished book. It is an important addition to the now quite considerable literature on proportionality, and it would benefit anyone interested in this omnipresent doctrine, especially in the three jurisdictions it covers - Germany, Canada, and South Africa. The book is not too long, and extremely readable - two non-negligible advantages for any reader - and Peterson has a rare capacity of simplifying intricate analytical moves and theoretical constructs without losing accuracy, a talent he also applies to the many cases he reviews in the book. The book is also innovative and ambitious, making it a very interesting and enriching read.' Iddo Porat, International Journal of Constitutional Law

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    Product details

    • Date Published: June 2018
    • format: Paperback
    • isbn: 9781316630822
    • length: 259 pages
    • dimensions: 230 x 153 x 15 mm
    • weight: 0.4kg
    • contains: 1 b/w illus.
    • availability: Available
  • Table of Contents

    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.

  • Author

    Niels Petersen, Westfälische Wilhelms-Universität Münster, Germany
    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.

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