دانلود کتاب Proportionality in Action: Comparative and Empirical Perspectives on the Judicial Practice

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Cover Half-title Series information Title page Copyright information Contents List of Figures List of Tables List of Contributors Preface Table of Cases Introduction: Analysing Proportionality Comparatively and Empirically I Scholarship on Proportionality: Strands and Developments A The Predominance of Normative Approaches to Proportionality B The Appeal of Comparative Constitutional Inquiries into Proportionality C The Value of the Empirical Turn in Proportionality Scholarship II The Goals of This Book III Methodology and Research Design 1 Proportionality Analysis by the German Federal Constitutional Court I Introduction II Legal and Institutional Context A The Expansion of the Court's Powers B A Powerful Court and Its Limits C The Ways in Which Cases Are Brought before the FCC III Structure of Limitation Analysis A The Place of Proportionality in the Structure of Fundamental Rights B The Basic Contours of the Proportionality Test C Contexts of Proportionality Analysis D Division of Labour between the Different Proportionality Subtests E Deviations from the Standard Sequential Model of Proportionality IV Limitation of a Fundamental Right A Scope of a Fundamental Right B What Triggers the Infringement of a Fundamental Right? C Limitation of Fundamental Rights 1 Limitation Clauses 2 Limits of Rights Limitations except Proportionality V Worthy Purpose A Establishing What the Purpose Is 1 Reliance on Statutory Text and Legislative History 2 Purposes Supplied by the Court 3 Multiple Purposes B What Are Worthy Purposes? 1 Determining the Worthiness of a Purpose 2 Importance and Urgency of the Worthy Purpose C What Are Unworthy Purposes? D Administrative Efficiency and Cost Savings as Worthy Purpose? VI Suitability A Establishing that the Measure Achieves the Purpose 1 Partial and Abstract Suitability 2 The Burden of Proof and the Limited Role of Evidentiary Issues 3 The Preference for Ex-ante Review 4 Measures Deemed Unsuitable B Effectiveness of Purpose Achievement C Substantiation over Time VII Necessity A Is There a Less Restricting Alternative? 1 Strict Exclusion of Less Restrictive but More Expensive Means 2 Comparative Law as Proof for the Existence of Less Restrictive Means B Comparative Effectiveness of Alternatives 1 Degree of Comparative Effectiveness Required 2 Conditions of Uncertainty and Deference to Policy-Makers C Can the Chosen Means Be More Narrowly Tailored? 1 What Characterizes Laws That Fail the Necessity Test? 2 A Narrow Conception of Necessity VIII Strict Proportionality A Interplay between the Strict Proportionality Test and the Other Tests 1 Interplay with the Worthy Purpose Stage 2 Interplay with the Suitability and Necessity Stages B Formulations and Applications of the Strict Proportionality Test 1 Formulas of Strict Proportionality 2 Modes of Strict Proportionality 3 Rules of Thumb C Interplay between Strict Proportionality and Remedy IX Overview of the Means Struck Down 2 Proportionality Analysis by the Canadian Supreme Court I Introduction II Legal and Institutional Context III Structure of Limitation Analysis A Overview B The Relationship between Section 1 Limitation Analysis and Internal Balancing Clauses C Contexts of Proportionality Analysis D Division of Labor between the Stages of the Analysis IV Limitation of a Constitutional Right A The Scope of a Constitutional Right B What Triggers the Limitation of a Constitutional Right? V Worthy Purpose A Establishing What the Purpose Is B What Are Worthy Purposes? C What Are Unworthy Purposes? D Administrative Efficiency and Cost Savings As Worthy Purpose? VI Suitability or Rational Connection A The Standard for Establishing Suitability B Effectiveness of Purpose Achievement VII Necessity or Minimal Impairment A Factors Influencing the Resolution of the Test B Is There a Less Restricting Alternative? C Comparative Effectiveness of Alternatives VIII Balancing A The Interplay between the Balancing Test and the Other Tests B A Larger Role for the Balancing Test? 3 Proportionality Analysis by the South African Constitutional Court I Introduction II Legal and Institutional Context A From Apartheid to the Human Rights Era B Access to Courts C Judicial Review of Administrative Action D Horizontal Application of the Bill of Rights E Criticisms of Judicial Activism in South Africa III Structure of Limitation Analysis A Overview B Challenges to Rights Limitation by Right Affected C Challenges to Rights Limitations by Subject Area of Limiting Measures D South Africa's 'Global' Proportionality Analysis E Division of Justificatory Labour in the Court's Proportionality Jurisprudence F Justification Requirements other than Proportionality G Conflict between Rights and Conflict with Public Interest IV Limitation of a Constitutional Right A The Scope of a Constitutional Right and the Seriousness of Rights Infringements B Hierarchy of Rights C What Triggers the Limitation of a Constitutional Right? V Worthy Purpose A Establishing the Purpose of the Limitation (i) The Legislature's Stated Purpose (ii) Evidence (iii) General v. Specific Statements of Purpose B Worthy and Unworthy Purposes C Administrative Efficiency and Cost-Saving as a Worthy Purpose VI Suitability or Rational Connection A The Significance of the Suitability Test B Suitability as Rational Connection C Determining Whether a Rational Connection Exists VII Necessity or Less Restricting Means A The Significance of the Less Restrictive Means Test B Narrow Tailoring of Means C Sufficiently Effective Alternatives VIII Balancing or Strict Proportionality A The Interplay between the Balancing Test and the Other Tests B Formulation and Application of the Strict Balancing Test C Additional Factors Taken into Account (i) Broader Harms (ii) Vulnerable Groups IX Overview of the Means Struck Down 4 Proportionality Analysis by the Israeli Supreme Court I Introduction II Legal and Institutional Context A The Pre-constitutional Era B The Rise in Judicial Activism and the Constitutional Revolution C The Backlash against the Court D The Ways Cases Are Brought before the Supreme Court III Structure of Limitation Analysis in Israel A Overview B Contexts of Proportionality Analysis C Division of Labour between the Stages of the Doctrine IV Limitation of a Constitutional Right A The Scope of Constitutional Rights B Government Actions as Limitations of Rights C The Severity of the Limitation V Worthy Purpose A Establishing What the Purpose Is 1 Official Declarations of Objective as Opposed to Unofficial Goals and Motivations 2 The Level of Abstraction Used in the Definition of the Goal 3 Multiple Goals B What Are Worthy Purposes? C What Are Unworthy Purposes? D Administrative Efficiency and Financial Saving as Worthy Purposes VI Suitability or Rational Connection A The Formulation of the Suitability Test B Establishing Rational Connection: Logic and Common Sense C Establishing Policy Effectiveness: The Use of Evidence 1 Establishing Effectiveness Ex Ante 2 Establishing Effectiveness Ex Post VII Necessity or Less-Restricting Means A Can the Chosen Means Be More Narrowly Tailored? 1 Narrowing the Scope of the Measure Exception Mechanisms The Categories of Application Individual Assessment 2 Narrowing the Frequency of the Limitation: Approval Procedures 3 Narrowing the Limitation in Time B Are There Alternative, Less-Restricting Measures? C Comparatively Assessing Alternatives 1 The Classic Formulation of the Necessity Test Standard: Equal Effectiveness 2 The Second Formulation of the Necessity Test Standard: Adequate Effectiveness 3 The Third Formulation of the Necessity Test Standard: Within the Range of Proportional Alternatives VIII Proportionality in the Strict Sense A The Interplay between the Final Stage and the Previous Stages B Formulations and Applications of Proportionality in the Strict Sense 1 Balancing in Absolute Terms 2 Balancing in Incremental Terms 3 Locating the Policy within the 'Proportionality Range' C Probability and Risk in the Balancing Formula D Additional Factors Taken into Account in the Balance IX Overview of the Means Struck Down 5 Proportionality Analysis by the Polish Constitutional Tribunal I Introduction II Legal and Institutional Context A The Rise and Fall of the Constitutional Tribunal B Powers of the Constitutional Tribunal Set Forth in the Constitution of 1997 C Bringing a Case before the Constitutional Tribunal III Structure of Limitation Analysis A The Limitation Clause B The Proportionality Test C The Contexts of Proportionality Analysis Categories of Rights The Outcome of Proportionality Analysis D Division of Labour between the Stages of the Proportionality Analysis IV Limitation of a Constitutional Right or Freedom A Constitutional Guarantees of Rights and Freedoms B The Hierarchy of Constitutional Rights and Freedoms Dignity, Liberty, and Equality as the General Principles of Law Economic and Social Rights C Application of the Infringement Test V Statutory Reservation Requirement A The Statutory Form of Rights Limitations B The Requirement of Statutory Specificity C The Requirement of Legislative Clarity, Precision, and Appropriateness VI Legitimate Aim A The Catalogue of Constitutional Values Justifying Restrictions of Constitutional Rights or Freedoms B Establishing the Relationship between a Legislative Purpose and a Legitimate Aim (a) Legislative Purpose (b) Goals Unworthy of Constitutional Protection (c) Mixed Legislative Motives (d) Administrative Efficiency and Procedural Economy VII Suitability A The Presumption of a Rational Legislator B Establishing Whether the Means Are Suitable C The Role of Evidence in the Suitability Stage VIII Necessity A The Formulation of the Necessity Test B Comparison to Alternative Measures C Means Found Unnecessary IX Proportionality in the Strict Sense A The Relationship between Strict Proportionality and the Previous Tests B The Application of the Strict Proportionality Test C The Prohibition of Excessiveness X Overview of the Means Struck Down 6 Limitation Analysis by the Indian Supreme Court I Introduction II Legal and Institutional Context A Institutional Structure B Normative Structure III Limitations Analyses in Theory A Article 14: Right to Equality B Article 19: Fundamental Freedoms C Article 21: Right to Life and Personal Liberty IV Limitations Analyses in Practice: Overview A Overview of Rights Adjudication B Contexts of Limitation Analysis C Division of Labour between the Elements of Limitation Analysis V Limitation of a Constitutional Right A Establishing the Limitation of a Right VI Worthy Purpose A The Role of Worthy Purpose in Limitation Analysis B Establishing a Worthy Purpose C What Are Worthy Purposes? D What Are Unworthy Purposes? E Proof of Purpose VII Suitability or Rational Nexus A The Role of Rational Nexus in Limitation Analysis B Establishing Rational Nexus C Narrow Tailoring D The (Non) Consideration of Alternative Means VIII General Balancing IX Relationship between Limitation Analysis and Remedies X Overview of the Means Struck Down 7 Comparative and Empirical Insights into Judicial Practice: Towards an Integrative Model of Proportionality I Introduction II The Structure of Proportionality Analysis in Theory and in Practice A Setting the Stage: Deviations from the Conventional Sequential Structure B A Single Dominant Element or Shared Responsibility between Tests? III The Significance of the Threshold Stages A The Threshold Stages in Theory B Judicial Practice Concerning the Worthy Purpose Test C Invigorating the Worthy Purpose Test D Judicial Practice Concerning the Suitability Test E Invigorating the Suitability Test F The Threshold Stages as the Gravitational Centre of Limitation Analysis: Judicial Practice in India IV Necessity and Strict Proportionality A The Relationship between the Two Elements in Theory B Judicial Practice 1 The German vs. the Canadian Model 2 An Integrated Model of Proportionality C Towards a More Commensurate Relationship between Necessity and Strict Proportionality V Proportionality as an Integrative Method of Analysis: Explanatory and Normative Perspectives A The Appeal of Integrative Proportionality Analysis from the Judicial Perspective B The Virtues of an Integrative Approach to Proportionality Analysis VI Future Possibilities for Empirically Grounded Comparative Research on Proportionality Index