Proportionality in Comparative Law
Forthcoming as an entry on ‘Proportionality’ in the Elgar Encyclopedia of Comparative Law (2nd edition), Jan Smits, Catherine Valcke, Jaakko Husa & Madalena Narciso, eds.
10 Pages Posted: 8 Apr 2022
Date Written: March 21, 2022
Investigations of proportionality’s role in contemporary public law are complicated by the way the topic straddles so many binaries familiar within the discipline of comparative law. These include those of substance and form, discourse and practice, ‘function’ and ‘culture’, and – perhaps most importantly – similarity and difference. Comparative legal scholarship, this entry argues, will have to grapple with the contradictory tasks of simultaneously investigating and questioning proportionality’s (real or purported) hegemony. To this end, the paper presents brief overviews of work concerned with the (1) identification, (2) explanation, (3) interpretation, and (4) critique, of proportionality’s global diffusion and ‘success’.
Keywords: rights, courts, constitutional law, legal reasoning, culture, technique
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