Proportionality Balancing and Global Constitutionalism

93 Pages Posted: 16 Mar 2010 Last revised: 31 May 2013

Alec Stone Sweet

Yale University - Yale Law School

Jud Mathews

Pennsylvania State University, Penn State Law

Date Written: 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.

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

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: https://ssrn.com/abstract=1569344

Alec Stone Sweet (Contact Author)

Yale University - Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

HOME PAGE: http://works.bepress.com/alec_stone_sweet/

Judkins Mathews

Pennsylvania State University, Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

HOME PAGE: https://pennstatelaw.psu.edu/faculty/mathews

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