Overview

Although the most important constitutional doctrine worldwide, a thorough cultural and historical examination of proportionality has not taken place until now. This comparison of proportionality with its counterpart in American constitutional law - balancing - shows how culture and history can create deep differences in seemingly similar doctrines. Owing to its historical origin in Germany, proportionality carries to this day a pro-rights association, while the opposite is the case for balancing. In addition, European legal and political culture has shaped proportionality as intrinsic to the state's role in realizing shared values, while in the United States a suspicion-based legal and political culture has shaped balancing in more pragmatic and instrumental terms. Although many argue that the USA should converge on proportionality, the book shows that a complex web of cultural associations make it an unlikely prospect.

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9781139134996

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Reviews

'Written in an admirably readable prose, this paperback volume offers a powerful explanation for the grand questions of proportionality. Likewise, it raises thought-provoking concerns about the suitability of proportionality schemes in various legal cultures. These questions and concerns should be equally addressed to the cheerful 'epistemological optimists', the EU lawyers who are destined to keep an enquiring comparative eye on American balancing.' Uladzislau Belavusau, Common Market Law Review

Author Information

Moshe Cohen-Eliya is Dean of the Law School of the Academic Center of Law and Business, Israel. Iddo Porat is a senior lecturer at the Law School of the Academic Center of Law and Business, Israel.

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