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7 - Comparative and Empirical Insights into Judicial Practice

Towards an Integrative Model of Proportionality

Published online by Cambridge University Press:  14 April 2020

Mordechai Kremnitzer
Affiliation:
Israel Democracy Institute
Talya Steiner
Affiliation:
Hebrew University of Jerusalem
Andrej Lang
Affiliation:
Martin Luther-Universität Halle-Wittenberg, Germany
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Summary

The chapter presents a comparative analysis of the application of proportionality in the six jurisdictions analysed in the book: Germany, Canada, South Africa, Israel, Poland, and India. The analysis focuses on the relationship and division of labour between proportionality's subtests and the function of the multi-stage doctrine as a whole. Examining two central attributes of the proportionality doctrine in the theoretical literature – the sequential structure of the analysis and the conception of a single dominant element – the chapter demonstrates how several of the analysed courts deviate from a strictly sequential model and present a tendency towards an integrated approach to proportionality. Descriptively, some potential causes for the gravitation of courts towards an integrative model of proportionality are offered. Normatively, the argument is made that an integrative use of proportionality analysis is also desirable: recognizing the connections between the stages and allowing feedback between them fully exploits the analytical potential inherent in proportionality analysis. This type of proportionality analysis best reflects the role of the court in ensuring that rights are limited only when justified, and provides the most positive guidance to policy-makers.

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Information
Proportionality in Action
Comparative and Empirical Perspectives on the Judicial Practice
, pp. 542 - 611
Publisher: Cambridge University Press
Print publication year: 2020

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