Book contents
- Frontmatter
- Contents
- List of contributors
- Foreword by Malcolm D. Evans
- List of abbreviations
- Introduction – Constitutionalism: a theoretical roadmap
- Part I States, courts and constitutional principles
- 1 The rejection of the universal state
- 2 The standing of states in the European Union
- 3 The constitutional role of general principles of law in international and European jurisprudence
- 4 Proportionality and discretion in international and European law
- Part II Transnational constitutional interface
- Part III Visions of international constitutionalism
- Index
4 - Proportionality and discretion in international and European law
Published online by Cambridge University Press: 01 July 2009
- Frontmatter
- Contents
- List of contributors
- Foreword by Malcolm D. Evans
- List of abbreviations
- Introduction – Constitutionalism: a theoretical roadmap
- Part I States, courts and constitutional principles
- 1 The rejection of the universal state
- 2 The standing of states in the European Union
- 3 The constitutional role of general principles of law in international and European jurisprudence
- 4 Proportionality and discretion in international and European law
- Part II Transnational constitutional interface
- Part III Visions of international constitutionalism
- Index
Summary
Introduction
The doctrine of proportionality presents us with a key point of disagreement between the detractors and enhancers of judicial power. For the detractors of judicial power, not least many members of the judiciary themselves, proportionality imposes too intensive a test for the legality of legislative and executive action. In a recent collection of essays on proportionality in European law, Jacobs worries that proportionality might go ‘too far’ and concludes with a call for flexibility. Lord Hoffmann goes still further in warning of ‘metaphysical problems of distinguishing different forms of irrationality which would truly be worthy of mediaeval schoolmen’ and calling for a reduction of the structure of judicial review to questions of irrationality and competence.
It is therefore hardly surprising that, as proportionality has been increasingly accepted as a criterion of judicial review, judiciaries have been creating various discretionary devices to soften its apparent impact. One only needs to mention terms such as ‘margin of appreciation’, ‘margin of discretion’, ‘due deference’, ‘variable intensity of review’, ‘sliding scale of review’ and so on. This is, of course, a matter of disappointment to the enhancers of judicial power, who had been hoping for better things. Hutchinson, writing on this topic in the context of the European Convention on Human Rights (ECHR), both issues a plea for the Court to decide matters for itself, and states that ‘reliance on the margin of appreciation is … not coherent jurisprudential principle’.
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- Information
- Transnational ConstitutionalismInternational and European Perspectives, pp. 107 - 132Publisher: Cambridge University PressPrint publication year: 2007
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