Abstract

http://ssrn.com/abstract=1569344
 
 

Footnotes (340)



 


 



Proportionality Balancing and Global Constitutionalism


Alec Stone Sweet


Yale University - Yale Law School and Yale Political Science

Jud Mathews


Penn State Law

2008

Columbia Journal of Transnational Law, Vol. 47, pp. 68-149, 2008

Abstract:     
Over the past fifty years, proportionality balancing – an analytical procedure akin to strict scrutiny in the United States – has become a dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part II proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts III and IV provide a genealogy of proportionality, trace its global diffusion, and evaluate its impact on law and politics in a variety of settings, both national and supranational. In the conclusion, we discuss our major finding, namely, that proportionality constitutes a doctrinal underpinning for the expansion of judicial power globally. Although there is significant variation in how it is used, judges who adopt proportionality position themselves to exercise dominance over policymaking and constitutional development.

Number of Pages in PDF File: 93

Keywords: constitutional law, balancing, rights, comparative law, proportionality, judging, EU, ECHR, WTO

Accepted Paper Series


Download This Paper

Date posted: March 16, 2010 ; Last revised: May 31, 2013

Suggested Citation

Stone Sweet, Alec and Mathews, Jud, Proportionality Balancing and Global Constitutionalism (2008). Columbia Journal of Transnational Law, Vol. 47, pp. 68-149, 2008. Available at SSRN: http://ssrn.com/abstract=1569344

Contact Information

Alec Stone Sweet (Contact Author)
Yale University - Yale Law School and Yale Political Science ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States
HOME PAGE: http://works.bepress.com/alec_stone_sweet/

Jud Mathews
Penn State Law ( email )
Lewis Katz Building
State College, PA 16802
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,498
Downloads: 437
Download Rank: 35,973
Footnotes:  340
People who downloaded this paper also downloaded:
1. Proportionality and the Culture of Justification
By Moshe Cohen-eliya and Iddo Porat

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.281 seconds