The Resource Proportionality and deference : constitutional rights and the separation of powers, Juha Tuovinen

Proportionality and deference : constitutional rights and the separation of powers, Juha Tuovinen

Label
Proportionality and deference : constitutional rights and the separation of powers
Title
Proportionality and deference
Title remainder
constitutional rights and the separation of powers
Statement of responsibility
Juha Tuovinen
Creator
Contributor
Subject
Language
eng
Summary
This thesis presents a phenomenology of deference in proportionality. There is a relatively broad consensus that proportionality balancing as a method for resolving conflicts of fundamental rights in cases of judicial review needs to be coupled with some kind of doctrine of deference. Although there is a significant literature on many aspects of this question, thus far one of the more basic ones, namely what deference looks like in cases of proportionality, has received less attention. In order to analyze this question, this thesis analyses the case law of four courts – the German Federal Constitutional Court, the Supreme Court of Canada, the Constitutional Court of South Africa and the European Court of Human Rights – with regard to three sets of rights – freedom of expression, the right to privacy and freedom of religion. From this analysis a number of points emerge: In the first place it shows that deference in balancing takes place through adapting the normative and empirical arguments required by that exercise to the institutional limitations attendant to courts. Further, we find a variety of similarities and differences in how deference operates between different rights and different courts. Here we can observe that proportionality is often constructed in a similar fashion among the same right between the different courts. This means that, the way in which courts balance is, often, very similar in Canada, South Africa, Germany and the ECtHR. We can further observe, that there are differences in the practice of balancing between the different rights. The normative and empirical questions that occupy courts with regard to different rights pose different institutional challenges and require courts to balance differently. Behind these two general observations there are more subtle and nuanced differences and similarities about each of the courts and rights that all contribute to a richer understanding of what deference looks like in proportionality cases
Member of
Cataloging source
IT-FiEUI
http://library.link/vocab/creatorName
Tuovinen, Juha
Date time place
Defence date: 4 December 2017
Dissertation note
Thesis (Ph. D.)--European University Institute (LAW), 2017.
Index
no index present
Literary form
non fiction
Nature of contents
theses
http://library.link/vocab/relatedWorkOrContributorName
European University Institute
Series statement
  • EUI PhD theses
  • EUI theses
http://library.link/vocab/subjectName
  • Constitutional law
  • Proportionality in law
  • Civil rights
  • Separation of powers
Label
Proportionality and deference : constitutional rights and the separation of powers, Juha Tuovinen
Link
http://hdl.handle.net/1814/49244
Instantiates
Publication
Note
Examining Board: Professor Martin Scheinin, European University Institute (Supervisor); Judge Boštjan Zupančič, European Court of Human Rights; Professor Kate O’Regan, University of Oxford; Professor Gábor Halmai, European University Institute
Bibliography note
Includes bibliographical references (pages 220-235)
Carrier category
volume
Carrier category code
  • nc
Carrier MARC source
rdacarrier.
Content category
text
Content type code
  • txt
Content type MARC source
rdacontent.
Control code
FIEb17604540
Dimensions
30 cm.
Extent
235 pages
Media category
unmediated
Media MARC source
rdamedia.
Media type code
  • n
System control number
(OCoLC)1016560479
Label
Proportionality and deference : constitutional rights and the separation of powers, Juha Tuovinen
Link
http://hdl.handle.net/1814/49244
Publication
Note
Examining Board: Professor Martin Scheinin, European University Institute (Supervisor); Judge Boštjan Zupančič, European Court of Human Rights; Professor Kate O’Regan, University of Oxford; Professor Gábor Halmai, European University Institute
Bibliography note
Includes bibliographical references (pages 220-235)
Carrier category
volume
Carrier category code
  • nc
Carrier MARC source
rdacarrier.
Content category
text
Content type code
  • txt
Content type MARC source
rdacontent.
Control code
FIEb17604540
Dimensions
30 cm.
Extent
235 pages
Media category
unmediated
Media MARC source
rdamedia.
Media type code
  • n
System control number
(OCoLC)1016560479

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