The function of proportionality analysis in European law / by Tor-Inge Harbo.
2015
KJC390 .H37 2015 (Map It)
Available at Cellar
Formats
| Format | |
|---|---|
| BibTeX | |
| MARCXML | |
| TextMARC | |
| MARC | |
| DublinCore | |
| EndNote | |
| NLM | |
| RefWorks | |
| RIS |
Items
Details
Author
Title
The function of proportionality analysis in European law / by Tor-Inge Harbo.
Published
Leiden ; Boston : Brill Nijhoff, [2015]
Call Number
KJC390 .H37 2015
ISBN
9789004277885 (hardback ; alk. paper)
9004277889 (hardback ; alk. paper)
9789004289475 (e-book)
900428947X (e-book ; alk. paper)
9789004289475 (e-book ; alk. paper)
9004277889 (hardback ; alk. paper)
9789004289475 (e-book)
900428947X (e-book ; alk. paper)
9789004289475 (e-book ; alk. paper)
Description
xvii, 331 pages ; 25 cm.
System Control No.
(OCoLC)903213005
Summary
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.
Note
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.
Bibliography, etc. Note
Includes bibliographical references (pages 319-329) and index.
Record Appears in
Table of Contents
Acknowledgements
ix
Table of Cases
x
Introduction
1
Part 1 PA in European Supra-/International Law
Introduction to Part 1
9
1.
PA in Ell Law
20
Introduction
20
1.
Structure of the Proportionality Analysis
23
2.
Application of PA
41
Conclusions
60
2.
PA in ECHR Law
63
Introduction
63
1.
Proportionality and the Margin of Appreciation
66
2.
Anatomy of the Court's Proportionality Analysis
71
3.
Practical Implications of PA
80
Conclusions
98
Conclusions to Part 1
100
Part 2 PA in European National Law
Introduction to Part 2
105
3.
UK Courts and PA
108
Introduction
108
1.
Wednesbury Doctrine
109
2.
PA in Administrative Law (beyond EU and ECHR Law)
112
3.
PA in ECHR Relevant Law
116
4.
PA in EU Relevant Law
127
Conclusions
134
4.
Norwegian Courts and PA
136
Introduction
136
1.
PA in EEA Law
137
2.
PA in Human Rights Law
153
3.
PA Beyond EEA and EC HR Law
174
Conclusions
190
Conclusions to Part 2
192
Part 3 The Function of PA in European Law
Introduction to Part 3
197
5.
PA: Between Rationality and Reasonableness
201
Introduction
201
1.
Rationality
201
2.
Reasonableness
208
Conclusions
214
6.
PA: Between Substance and Procedure
215
Introduction
215
1.
Substantive Implications of PA
216
2.
Procedural Implications of PA
224
Conclusions
227
7.
PA and the Role of Courts
229
Introduction
229
1.
Relationship between European and National Courts
230
2.
Do Judges "Govern"?
239
3.
Why Should Courts "Govern"?
243
4.
Challenges to "Judicial Governance"
248
Conclusions
254
8.
PA as a (General) Principle of Law
256
Introduction
256
1.
Nature and Function of Principles
257
2.
Nature of Principles of Law
261
3.
Function of Principles of Law
264
Conclusions
274
9.
PA and the Rule of Law
276
Introduction
276
1.
Rule of Law as an Essentially Contested Concept
277
2.
Rule of Law, Rechtsstaat, etc.
280
3.
Inter-/Supranationalization of the Rule of Law
285
4.
PA and the Rule of Law
289
Conclusions
292
Conclusions to Part 3
294
Conclusions with Resolutions
297
Bibliography
319
Index
330