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The Cross-Fertilization of Jurisprudence and the Principle of Proportionality: Process and Result from a Canadian Perspective

20 Pages Posted: 19 Sep 2013  

Marie Deschamps

McGill University - Faculty of Law

Maxime St-Hilaire

University of Sherbrooke - Faculty of Law

Pierre N. Gemson

Independent

Date Written: April 22, 2010

Abstract

Modern comparative constitutionalism traces back at least to the practice of some states in the post-World War II era of adopting democratic regimes as well as constitutionally entrenched bills of rights. It has since been fueled by the proliferation of international human rights instruments, which has increased with the end of the Cold War. Significant attention was first paid to comparative constitutional structure, but many states have now reached another stage. As notably witnessed by the works of the Council of Europe and especially those of the Venice Commission in the domain of constitutional justice, the question now is no longer about constitutionalism, including whether rights should be constitutionally protected, as much as it is about constitutional justice: how to effectively implement constitutions. Both on a regional and a global level, mutual inspiration is increasingly drawn from the case-law of peer Courts of other countries and even other continents, which gives rise to a cross-fertilisation phenomenon. One constitutional principle that emerges from, and which is still being forged by, such cross-fertilisation is the principle according to which the limitation of human rights and freedoms must be proportional to states’ objectives, that is, the principle of proportionality. More specifically, our topic is about both the historical process of jurisprudential cross-fertilisation and its functional result as far as the principle of proportionality is concerned. We speak from a Canadian perspective. The aim here is to be able to distinguish between what is common and what is distinctive about the Canadian approach.

Keywords: Constitutional Law, Human Rights, Proportionality, Canada, Europe, United States, Supreme Court of Canada, European Court of Human Rights, Supreme Court of the United States, Inter-American Court of Human Rights

Suggested Citation

Deschamps, Marie and St-Hilaire, Maxime and Gemson, Pierre N., The Cross-Fertilization of Jurisprudence and the Principle of Proportionality: Process and Result from a Canadian Perspective (April 22, 2010). Available at SSRN: https://ssrn.com/abstract=2327537 or http://dx.doi.org/10.2139/ssrn.2327537

Marie Deschamps

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

Maxime St-Hilaire (Contact Author)

University of Sherbrooke - Faculty of Law ( email )

Sherbrooke, Québec
Canada
(819) 821-8000 # 65558 (Phone)
(819) 821-7578 (Fax)

HOME PAGE: http://www.usherbrooke.ca/droit/faculte/personnel/corps-professoral/maxime-st-hilaire/

Pierre N. Gemson

Independent ( email )

No Address Available

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