Grant Huscroft

Proportionality and the Rule of Law: Rights, Justification, Reasoning

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 worlds 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 is the Introduction to Proportionality and the Rule of Law: Rights, Justification, Reasoning, published by Cambridge University Press in April, 2014. In addition to the Introduction, this paper includes a list of contributors and a table of contents.

Proportionality and the Rule of Law: Conceptions 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 worlds 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 is the Introduction to Proportionality and the Rule of Law: Rights, Justification, Reasoning, published by Cambridge University Press in April, 2014. In addition to the Introduction, this paper includes a list of contributors and a table of contents.

Proportionality and the Rule of Law: Contents

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 worlds 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 is the Introduction to Proportionality and the Rule of Law: Rights, Justification, Reasoning, published by Cambridge University Press in April, 2014. In addition to the Introduction, this paper includes a list of contributors and a table of contents.

Proportionality and the Rule of Law: Contributors

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 worlds 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 is the Introduction to Proportionality and the Rule of Law: Rights, Justification, Reasoning, published by Cambridge University Press in April, 2014. In addition to the Introduction, this paper includes a list of contributors and a table of contents.

Vagueness, Finiteness, and the Limits of Interpretation and Construction

Vaguely worded/underdeterminate constitutional rights guarantees are a standard problem in constitutional law and have the potential to open a vast role for judicial review. However, there are limits to what courts may accomplish in purporting to interpret or construct rights, limits that originalists and living constitutionalists alike must respect. These limits flow from the idea that bills of rights are finite instruments: they protect only the rights they enumerate, and the vagueness of those rights neither invites nor allows courts to provide rights-based answers to every problem that may arise in constitutional litigation.Originalists require a means of determining the boundaries of legitimate construction when textual meaning runs out, whereas living constitutionalists must make sense of rights having eschewed the idea that they may have some fixed, fore meaning. The scope of bills of rights is typically limited by design, and the absence of some rights that might have been enumerated may reflect a decision to deny constitutional authority to them, despite the strong moral claim they present. In other words, the silence of a bill of rights may have normative significance.Drawing on experience under the Canadian Charter of Rights and Freedoms, I argue that Courts must respect the constitutional settlement that a bill of rights reflects, rather than take advantage of vaguely worded guarantees to change the bill of rights, and hence, the nature of the constitutional settlement itself.