Proportionality balancing and global constitutionalism

Alec Stone Sweet, Jud Mathews

Research output: Contribution to journalArticle

266 Citations (Scopus)

Abstract

Over the past fifty years, proportionality balancing - an analytical procedure akin to "strict scrutiny" in the United States-has become a dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part II proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts III and IV provide a genealogy of proportionality, trace its global diffusion, and evaluate its impact on law and politics in a variety of settings, both national and supranational. In the conclusion, we discuss our major finding, namely, that proportionality constitutes a doctrinal underpinning for the expansion of judicial power globally. Although there is significant variation in how it is used, judges who adopt proportionality position themselves to exercise dominance over policymaking and constitutional development.

Original languageEnglish (US)
Pages (from-to)72-164
Number of pages93
JournalColumbia Journal of Transnational Law
Volume47
Issue number1
StatePublished - Dec 1 2008

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proportionality
constitutionalism
judicial power
ECHR
genealogy
WTO
treaty
New Zealand
Israel
regime
Canada
Law
politics

All Science Journal Classification (ASJC) codes

  • Political Science and International Relations
  • Law

Cite this

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Proportionality balancing and global constitutionalism. / Sweet, Alec Stone; Mathews, Jud.

In: Columbia Journal of Transnational Law, Vol. 47, No. 1, 01.12.2008, p. 72-164.

Research output: Contribution to journalArticle

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