The proportionality principle has become ever more important in European law and elsewhere. The career of the principle has attracted considerable attention from legal practitioners, legal theorists and political scientists alike, but the debate so far has been quite fragmented. In this new book the author offers a broad and systematic analysis of the proportionality principle. Discussing and comparing proportionality analysis as applied by European courts in part one of the book, the author proceeds to contrast proportionality analysis with alternative assessment schemes. In the third part of the book the author reaches beyond doctrinal reconstructions as he deciphers the functions of proportionality jurisprudence. In view of the various facets of proportionality analysis the author departs from the asserted infringement of a legally protected position by some regulatory act, proceeds to discuss the legitimacy of this intervention and undertakes an analysis of its suitability, appropriateness and necessity. According to the author, the safe grounds of proportionality means-ends rationality do not suffice where the legitimacy of an infringement has to be assessed, where conflicting values have to be "balanced" or where courts engage in a proportionality analysis "stricto sensu". In the concluding remarks, the author proposes how proportionality analysis may be structured in order to better secure the legitimacy of the analysis
Preliminary Material -- Introduction -- pa in eu Law -- pa in echr Law -- Conclusions to Part 1 -- uk Courts and pa -- Norwegian Courts and pa -- Conclusions to Part 2 -- pa: Between Rationality and Reasonableness -- pa: Between Substance and Procedure -- pa and the Role of Courts -- pa as a (General) Principle of Law -- pa and the Rule of Law -- Conclusions to Part 3 -- Conclusions with Resolutions -- Bibliography -- Index.
The Function of Proportionality Analysis in European Law -- Copyright -- Contents -- Acknowledgements -- Table of Cases -- Introduction -- Part 1: PA in European Supra-/International Law -- Introduction to Part 1 -- 1: PA in EU Law -- Introduction -- 1 The Structure of the Proportionality Analysis -- 2 The Application of PA -- Conclusions -- 2: PA in ECHR Law -- Introduction -- 1 Proportionality and the Margin of Appreciation -- 2 The Anatomy of the Court's Proportionality Analysis -- 3 The Practical Implications of PA -- Conclusions -- Conclusions to Part 1 -- Part 2: PA in European National Law -- Introduction to Part 2 -- 3: UK Courts and PA -- Introduction -- 1 The Wednesbury Doctrine -- 2 PA in Administrative Law (beyond EU and ECHR Law) -- 3 PA in ECHR Relevant Law -- 4 PA in EU Relevant Law -- Conclusions -- 4: Norwegian Courts and PA -- Introduction -- 1 PA in EEA Law -- 2 PA in Human Rights Law -- 3 PA Beyond EEA and ECHR Law -- Conclusions -- Conclusions to Part 2 -- Part 3: The Function of PA in European Law -- Introduction to Part 3 -- 5: PA: Between Rationality and Reasonableness -- Introduction -- 1 Rationality -- 2 Reasonableness -- Conclusions -- 6: PA: Between Substance and Procedure -- Introduction -- 1 The Substantive Implications of PA -- 2 The Procedural Implications of PA -- Conclusions -- 7: PA and the Role of Courts -- Introduction -- 1 The Relationship between European and National Courts -- 2 Do Judges "Govern"? -- 3 Why Should Courts "Govern"? -- 4 Challenges to "Judicial Governance" -- Conclusions -- 8: PA as a (General) Principle of Law -- Introduction -- 1 The Nature and Function of Principles -- 2 The Nature of Principles of Law -- 3 The Function of Principles of Law -- Conclusions -- 9: PA and the Rule of Law -- Introduction
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