Proportionality In Asia

This is the first book that focusses on how proportionality analysis – a legal transplant from the West – is applied by courts around Asia, and it explores how a country's commitment to democracy and the rule of law is fundamental to the success of the doctrine's judicial enforcement. This book will appeal to lawyers, political scientists, and students of law and political science who seek to understand how proportionality analysis is blossoming and, in some cases, flourishing in Asia.

This book illuminates how law and politics interact in the judicial doctrines and explores how democracy sustains and is sustained by the exercise of judicial power.

This book offers a comprehensive critique of the principle of proportionality and balancing as applied to human and constitutional rights.

The main objective of this study is to present a comparative legal analysis of proportionality. It provides a close examination of the key areas in which this principle has been applied, both at the national and supranational levels. The whole work is placed in the context of transformation of public law in the twentieth century. As many important general principles of law as applied by the Court of Justice have been borrowed from German and French law, a comparative study of the various forms which this principle has assumed in both German and French public law is presented. The book then offers an in-depth analysis of the application and impact of the principle of proportionality in EC law. The introduction and development of this principle by the Court of Justice represents one of the most striking examples of the interaction between the Community and national legal systems. It also illustrates the character of Community law as developed by the Court and the law-making function of the latter.

In this book, Alec Stone Sweet and Clare Ryan provide an accessible introduction to Kantian constitutional theory and the law and politics of European rights protection. Part I sets out Kant's blueprint for achieving Perpetual Peace and constitutional justice within and beyond the nation state. Part II applies these ideas to explain the gradual constitutionalization of a Cosmopolitan Legal Order: a transnational legal system in which justiciable rights are held by individuals; where public officials bear the obligation to fulfil the fundamental rights of all who come within the scope of their jurisdiction; and where domestic and transnational judges supervise how officials act. Such an order was instantiated in Europe through the combined effects of Protocol no. 11 (1998) to the European Court of Human Rights (ECtHR) and the incorporation of the Convention into national law. The authors then describe and assess the strengthening of the European Court's capacities to meet the challenge of chronic failures of protection at the domestic level; its progressive approach to the "qualified" rights covering privacy and family life, and the freedoms of expression, conscience, and religion; the robust enforcement of the "absolute" rights, including the prohibition of torture and inhuman treatment; and its determined efforts to render justice to all people that come under its jurisdiction, including non-citizens whose rights are violated beyond Europe. Today, the Strasbourg Court is the most active and important rights-protecting court in the world, its jurisprudence a catalyst for the construction of a cosmopolitan constitution in Europe and beyond.

To speak of human rights in the twenty-first century is to speak of proportionality. Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, South Africa, and the United States, as well as the jurisprudence of treaty-based legal systems such as the European Convention on Human Rights. Proportionality provides a common analytical framework for resolving the great moral and political questions confronting political communities. But behind the singular appeal to proportionality lurks a range of different understandings. This volume brings together many of the world's leading constitutional theorists - proponents and critics of proportionality - to debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning. Their essays provide important new perspectives on this leading doctrine in human rights law.

This book uses empirical analysis to show that courts refrain from using the proportionality test as a means of judicial activism.

Infrastructure is essential for development. This report presents a snapshot of the current condition of developing Asia's infrastructure---defined here as transport, power, telecommunications, and water supply and sanitation. It examines how much the region has been investing in infrastructure and what will likely be needed through 2030. Finally, it analyzes the financial and institutional challenges that will shape future infrastructure investment and development.

This volume provides a unique overview of methodologies that are conducive to a successful legal transplant in East Asia and Oceania. Each chapter is drafted by a scholar who holds direct professional experience on the legal transplant considered and has a distinctive insight into the pragmatic difficulties related to grafting an alien institution into a legal tradition. The range of transplants includes the implementation of contractual obligations, the regulation of commercial investments and the protection of the environment. The majority of recent legal reforms in these geographical areas have aimed at improving national economic performance and fostering trade and have been directly inspired by European and North American institutional experiences. There is also, however, a tendency to couple economic reforms, aimed at attracting foreign investment, with constitutional reforms that improve the protection of individual rights, the environment and the rule of law.

With contributions from leading scholars in constitutional law, this volume examines how carefully designed and limited doctrines of proportionality can improve judicial decision-making, how it is applied in different jurisdictions, its role on constitutionalism outside the courts, and whether the principle of proportionality actually advances or detracts from democracy. Contributions from some of the seminal thinkers on the development of scholarship on proportionality (e.g. Alexy, Barak, and Beatty) extend their prior work and engage in an important dialogue on the topic. Some offer substantial critiques, others defend the doctrine and offer important clarifications and extensions of their prior work. Throughout, the authors engage not only with case law from around the world but also with existing scholarly treatments of the subject. Mathematical treatments are avoided, making the book accessible to readers from both 'soft' and hard' social science backgrounds.