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Standing in the shadows of balancing: Proportionality and the necessity test
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Standing in the shadows of balancing: Proportionality and the necessity test
Journal Article
Standing in the shadows of balancing: Proportionality and the necessity test
International Journal of Constitutional Law, Volume 20, Issue 5, December 2022, Pages 1738–1767, https://doi.org/10.1093/icon/moac105
Published: 04 January 2023
... is really all about balancing, right?” Wrong again! But the fault is not yours. Although acknowledging the necessity stage as one of the steps in the proportionality test may be considered textbook orthodoxy, there are so many articles on proportionality that deal only with balancing and do not even mention...
Journal Article
Engagement with rights in the making of counterterrorism legislation—Perspectives from three case studies: An introduction
International Journal of Constitutional Law, Volume 19, Issue 2, April 2021, Pages 586–602, https://doi.org/10.1093/icon/moab045
Published: 10 June 2021
... and proportionality, that the measures were limited to what was necessary and proportionate, and that “appropriate” safeguards were included. However, no detail was provided regarding the way in which the directive in fact impacted specific rights and how such impact was either justified or balanced. Moreover...
Journal Article
Executive policy development and constitutional norms: Practice and perceptions
International Journal of Constitutional Law, Volume 18, Issue 4, December 2020, Pages 1136–1165, https://doi.org/10.1093/icon/moaa082
Published: 10 January 2021
... that uncertainty can arise if the court has indicated that the resolution of a particular constitutional question will be reliant on empirical evidence (such as a proportionality test), and the executive and legislature are developing policy under “conditions of factual uncertainty.” 14 Often...
Journal Article
Socioeconomic rights: Do they deliver the goods?
International Journal of Constitutional Law, Volume 6, Issue 3-4, July-October 2008, Pages 687–711, https://doi.org/10.1093/icon/mon014
Published: 07 July 2008
.... In particular, a jurisprudence of positive rights would force a court to engage in a far more open-textured proportionality analysis when seeking to balance these rights against the claims built up under apartheid as well as arguments that, as a default position, majoritarianism should trump any right asserted...
Journal Article
Beyond Race, Sex, and Sexual Orientation
International Journal of Constitutional Law, Volume 12, Issue 1, January 2014, Pages 264–268, https://doi.org/10.1093/icon/mou012
Published: 03 April 2014
... about making up relevant groups of comparison, and it does not refer to harm reduction as a guiding principle. Besides, it has evolved into a proportionality-like analysis since the 1980s. On the other hand, justification- and state-centered review is constitutive for proportionality tests. It appears...
Journal Article
Intersectional litigation and the structuring of a European interpretive community
International Journal of Constitutional Law, Volume 9, Issue 3-4, October 2011, Pages 714–736, https://doi.org/10.1093/icon/mor014
Published: 01 October 2011
... of their measures by showing that those are genuinely committed to pursuing legitimate policy objectives. Justification, then, brings in proportionality review that the Court of Justice undertakes in light of far stricter standards than the rationality test. First, the Court verifies the legitimacy of states...
Journal Article
Non-judicial rights review of counterterrorism policies: The role of fundamental rights in the making of the counterterrorism database and the data retention legislation in Germany
International Journal of Constitutional Law, Volume 19, Issue 2, April 2021, Pages 634–664, https://doi.org/10.1093/icon/moab044
Published: 10 June 2021
... the requirements of the strict proportionality test. 77 In particular, the Court criticized the law for lacking adequate data security, restrictions on the purposes of use of the data, informational obligations towards persons whose data was retrieved, sufficient protection of confidential relations...
Journal Article
Constitutional pluralism and loyal opposition
International Journal of Constitutional Law, Volume 19, Issue 1, January 2021, Pages 241–268, https://doi.org/10.1093/icon/moab035
Published: 12 May 2021
... and values of European integration than agreement with the CJEU. A “legitimacy test” is proposed, by which we can determine whether a given instance of national judicial disagreement with the CJEU is loyal, principled opposition, or disloyal, abusive opposition. Constitutional pluralism (CP) is the umbrella...
Journal Article
The switch: The Israel High Court of Justice’s transition from occupation law to human rights law
International Journal of Constitutional Law, Volume 20, Issue 5, December 2022, Pages 1768–1792, https://doi.org/10.1093/icon/moac108
Published: 06 February 2023
... of these legal proceedings, Israeli authorities were required to identify the legal basis for their conduct, and justify the measures undertaken, including their necessity and proportionality. This placed the civil service and military lawyers, working under the shadow of the HCJ in order to resolve issues...
Journal Article
Strategic judicial responses in politically charged cases: East Asian experiences
International Journal of Constitutional Law, Volume 8, Issue 4, October 2010, Pages 885–910, https://doi.org/10.1093/icon/mor013
Published: 01 October 2010
... shadow of foreign jurisprudence. The gravity/proportionality standard used in the Korean decision reads as similar to many American scholarly writings discussing the House impeachment of the U.S. president Bill Clinton. 84 The criminal investigation against President Chen in Taiwan is strongly...
Journal Article
Political constitutionalism and the Human Rights Act
International Journal of Constitutional Law, Volume 9, Issue 1, January 2011, Pages 86–111, https://doi.org/10.1093/icon/mor024
Published: 01 January 2011
..., and there is nothing new in that. 14 The crux is where supremacy lies—with the legislature, as political constitutionalists desire, or the judiciary, as legal constitutionalists wish, and how far judges make judicial deference to Parliament a central feature of their role. On this account, therefore, the crucial test...
Journal Article
Interpreting bills of rights: The value of a comparative approach
International Journal of Constitutional Law, Volume 5, Issue 1, January 2007, Pages 122–152, https://doi.org/10.1093/icon/mol042
Published: 01 January 2007
... contained in a written instrument in which it has been sought to formulate with precision the powers and duties of the various agencies that it holds in balance. That instrument now stands in its own right; and, while it may well be useful on occasions to draw on British practice or doctrine in interpreting...
Journal Article
The politics of constitutional review in France and Europe
International Journal of Constitutional Law, Volume 5, Issue 1, January 2007, Pages 69–92, https://doi.org/10.1093/icon/mol041
Published: 01 January 2007
... is no, then balancing follows. If, in applying proportionality tests, courts necessarily become supplementary legislators and administrators, the reverse is also true: the enforcement of the least-restrictive-means standard pushes lawmakers and administrators into a judicial mode, requiring them to reason as the judge...
Journal Article
Taming the exception? Lessons from the routinization of states of emergency in France
International Journal of Constitutional Law, Volume 20, Issue 5, December 2022, Pages 1793–1819, https://doi.org/10.1093/icon/moad006
Published: 23 February 2023
..., the theoretical contributions to the issue of exceptional circumstances of the second half of the twentieth century put forth an “internal” model. Clinton Rossiter’s concept of constitutional dictatorship (which experienced a revived interest after 9/11), for instance, affirms both the necessity...
Journal Article
(Un)constitutional change rooted in peace agreements
International Journal of Constitutional Law, Volume 18, Issue 4, December 2020, Pages 1373–1404, https://doi.org/10.1093/icon/moaa090
Published: 28 January 2021
... ordinary times by making use of purposive interpretation and proportionality tests that take into account the exigencies of a transition and the object of achieving peace. 93 The idea of transitional constitutionalism, therefore, is closely related to the role a constitution...
Journal Article
A typology of economic and social rights adjudication: Exploring the catalytic function of judicial review
International Journal of Constitutional Law, Volume 8, Issue 3, July 2010, Pages 385–420, https://doi.org/10.1093/icon/moq029
Published: 01 July 2010
... reasoned tests of proportionality. And a dialogic interaction may arise if the court issues a suspended declaration of invalidity. 52 This style appears appropriate for other systems which, like Canada's (and South Africa’s), combine a historical commitment to parliamentary sovereignty with a present-day...
Journal Article
The constitutional protection of economic rights
International Journal of Constitutional Law, Volume 2, Issue 1, January 2004, Pages 56–90, https://doi.org/10.1093/icon/2.1.56
Published: 01 January 2004
... be a means by which almost any economic
burden imposed by legislative or administrative action may be constitutionally
tested.51 If we say that what makes a right “economic” (or “social” or “cul-
tural”) is the kind of interest it protects, then we surely have to accept that
these “civil” rights can...
Journal Article
Disabling constitutionalism. Can the politics of the Belgian Constitution be explained?
International Journal of Constitutional Law, Volume 12, Issue 2, April 2014, Pages 279–302, https://doi.org/10.1093/icon/mou028
Published: 01 August 2014
... of this article is a testimony to the challenge that every academic active in the domain of Belgian public law has to face from time to time. Sooner or later, he or she will be confronted with questions about Belgian politics and its accompanying constitutional state of affairs. One question stands out...
Journal Article
The CJEU and EU (de-)constitutionalization: Unpacking jurisprudential responses
International Journal of Constitutional Law, Volume 20, Issue 3, July 2022, Pages 1038–1070, https://doi.org/10.1093/icon/moac061
Published: 05 November 2022
... it is that the CJEU’s jurisprudence will refrain from advancing constitutionalization. EU security policies—namely the Common Foreign and Security Policy (CFSP) and Justice and Home Affairs (JHA)—constitute an ideal terrain for testing our theory. 48 First, security policies show a distinctive integration...
Journal Article
Route 66: Mutations of the internal market explored through the prism of citation networks Get access
International Journal of Constitutional Law, Volume 21, Issue 3, July 2023, Pages 826–858, https://doi.org/10.1093/icon/moad063
Published: 18 August 2023
... from theory testing. 70 The employment of network methods without statistical modeling (as used in this article) is ill-suited for the latter task. The following subsections introduce and appraise the method of community detection and describe the characteristics of the case law...
