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El test de proporcionalidad es un instrumento metodológico originado en tribunales constitucionales europeos, que se emplea para medir si el grado de limitación o restricción de un derecho fundamental dispuesto por la ley o por alguna medida gubernamental resulta compatible con la constitución, atendiendo a la razonabilidad y proporcionalidad de la afectación al derecho. Nuestro Tribunal Constitucional lo utiliza para ponderar casos de conflictos entre derechos fundamentales o de la restricción impuesta a un derecho específico. En este trabajo, Marcial Rubio Corrrea, el autor, ha identificado y sistematizado 63 casos de aplicación del test de proporcionalidad por el TC, a partir de los cuales realiza un análisis crítico en el que evalúa y califica el uso de este test. En su análisis demuestra que el TC, en su aplicación, ha llegado en muchos casos a conclusiones y resoluciones distintas, a pesar de referirse a problemáticas similares. También sustenta el insuficiente rigor metodológico y de motivación en que ha incurrido el TC al desarrollar los distintos pasos de test para la solución de un caso. Este es el primer estudio que aborda en nuestro país el tema de manera sistemática y crítica, lo que le otorga un singular valor para la disciplina constitucional y tiene además notable relevancia y aplicación práctica, pues sirve de orientación e información para estudiantes, abogados litigantes, magistrados judiciales y del Tribunal Constitucional, así como profesores de derecho constitucional y de derecho procesal constitucional.
This is the first book on the theory and practice of proportionality in Latin American constitutional law.
Proportionality in Action presents an empirical and comparative exploration of the proportionality doctrine, based on detailed accounts of the application of the framework by apex courts in six jurisdictions: Germany, Canada, South Africa, Israel, Poland and India. The analysis of each country is written and contextualized by a constitutional scholar from the relevant jurisdiction. Each country analysis draws upon a large sample of case law and employs a mixed methodological approach: an expansive coding scheme allows for quantitative analysis providing comparable and quantifiable measurements, which is enriched by qualitative analysis that engages with the substance of the decisions and captures nuance, contextualizing the data and providing it with meaning. The book concludes with a comparative chapter that synthesizes some of the most interesting findings. Focusing on deviations of the practice of proportionality from theory, the authors conclude their argument in support of an integrated approach to the application of proportionality.
This book examines the reasoning practice of 15 constitutional courts and supreme courts, including the Caribbean Commonwealth and the Inter-American Court of Human Rights. Enriched by empirical data, with which it strives to contribute to a constructive and well-informed debate, the volume analyses how Latin American courts justify their decisions. Based on original data and a region-specific methodology, the book provides a systematic analysis utilising more than 600 leading cases. It shows which interpretive methods and concepts are most favoured by Latin American courts, and which courts were the most prolific in their reasoning activities. The volume traces the features of judicial dialogue on a regional and sub-regional level and enables the evaluation and comparison of each country's reasoning culture in different epochs. The collection includes several graphs to visualise the changes and tendencies of the reasoning practices throughout time in the region, based on information gathered from the dataset. To better understand the current functioning and the future tendencies of courts in Latin America and the Caribbean, the volume illuminates how constitutional and supreme courts have actually been making their decisions in the selected landmark cases, which could also contribute to future successful litigation strategies for both national constitutional courts and the Inter-American Court for Human Rights. This project was made possible due to the collaboration and funding provided by the Rule of Law Programme for Latin America of the Konrad Adenauer Foundation and the Law School of the University of San Francisco de Quito.
Constitutional law in Latin America embodies a mosaic of national histories, political experiments, and institutional transitions. No matter how distinctive these histories and transitions might be, there are still commonalities that transcend the mere geographical contiguity of these countries. This Handbook depicts the constitutional landscape of Latin America by shedding light on its most important differences and affinities, qualities and drawbacks, and by assessing its overall standing in the global enterprise of democratic constitutionalism. It engages with substantive and methodological conundrums of comparative constitutional law in the region, drawing meaningful comparisons between constitutional traditions. The volume is divided into two main parts. Part I focuses on exploring the constitutions for seventeen jurisdictions, offering a comprehensive country-by-country critique of the historical foundations, institutional architecture, and rights-based substantive identity of each constitution. Part II presents comparative analyses on the most controversial constitutional topics of the region, exploring central concepts in institutions and rights. The Oxford Handbook of Constitutional Law in Latin America is an essential resource for scholars and students of comparative constitutional law, and Latin American politics and history Written by leading experts, it comprehensively examines constitutions, controversies, institutions, and constitutional rights in Latin America.
In this book, Alec Stone Sweet and Jud Mathews focus on the law and politics of rights protection in democracies, and in human rights regimes in Europe, the Americas, and Africa. After introducing the basic features of modern constitutions, with their emphasis on rights and judicial review, the authors present a theory of proportionality that explains why constitutional judges embraced it. Proportionality analysis is a highly intrusive mode of judicial supervision: it permits state officials to limit rights, but only when necessary to achieve a sufficiently important public interest. Since the 1950s, virtually every powerful domestic and international court has adopted proportionality analysis as the central method for protecting rights. In doing so, judges positioned themselves to review all important legislative and administrative decisions, and to invalidate them as unconstitutional when such policies fail the proportionality test. The result has been a massive - and global - transformation of law and politics. The book explicates the concepts of 'trusteeship', the 'system of constitutional justice', the 'effectiveness' of rights adjudication, and the 'zone of proportionality'. A wide range of case studies analyse: how proportionality has spread, and variation in how it is deployed; the extent to which the U.S. Supreme Court has evolved and resisted similar doctrines; the role of proportionality in building ongoing 'constitutional dialogues' with the other branches of government; and the importance of the principle to the courts of regional human rights regimes. While there is variance in the intensity of proportionality-based dialogues, such interactions are today at the very heart of governance in the modern constitutional state and beyond.
The book deals with two very important but imprecise terms in contemporary law, namely public policy and public morality. It is commendable that such a comprehensive work about general clauses has been prepared. They are the elements of the common good which refers directly to Article 1 of the Constitution of the Republic of Poland. The aim of these clauses is to protect the integrity of Polish legal order and the reason why they are applied boils down to the public interest. The clauses refer to the extralegal criteria of a moral, economic or political nature. That is why, for a legal practice, it appears vital that experts contribute to the clarification of their content and meaning as a legal categories. No less important is entrusting or leaving this task to the courts and other legal bodies. These efforts serve to ensure necessary flexibility in applying, in particular, the public policy clause – a safety valve of legal order. prof. Franciszek Longchamps de Bérier, Jagiellonian University in Kraków The theme of the volume and the studies included in it are very interesting and important from a cognitive and applied perspective. The authors of the book represent various academic circles and different legal disciplines, whereas their conclusiveness is an essential value of the presented analyses. Dr hab. Krzysztof Motyka, The John Paul II Catholic University of Lublin, Poland The idea of the authors of the book to discuss the issues of “public policy” and “public morality” as legal clauses in Polish law against the background of legal solutions of the European Union and international law deserves recognition. It efficiently combines the findings of the legal doctrine and the judicial decisions which allows to view these problems not only from the theoretical and legal perspective, but also from a practical angle. The presented definitions, theoretical and legal considerations, as well as the rulings regarding the clauses of “public policy” and “public morality” constitute a starting point for the authors to formulate their own arguments and conclusions de lege lata and de lege ferenda. The authors also skillfully describe the afore-mentioned clauses and demonstrate their close relationship with constitutional axiology, emphasizing their limitative nature and homeostatic role. Dr hab. Paweł Cichoń, Jagiellonian University in Kraków, Poland
Judicial control of public power ensures a guarantee of the rule of law. This book addresses the scope and limits of judicial control at the national level, i.e. the control of public authorities, and at the supranational level, i.e. the control of States. It explores the risk of judicial review leading to judicial activism that can threaten the principle of the separation of powers or the legitimate exercise of state powers. It analyzes how national and supranational legal systems have embodied certain mechanisms, such as the principles of reasonableness, proportionality, deference and margin of appreciation, as well as the horizontal effects of human rights that help to determine how far a judge can go. Taking a theoretical and comparative view, the book first examines the conceptual bases of the various control systems and then studies the models, structural elements, and functions of the control instruments in selected countries and regions. It uses country and regional reports as the basis for the comparison of the convergences and divergences of the implementation of control in certain countries of Europe, Latin America, and Africa. The book’s theoretical reflections and comparative investigations provide answers to important questions, such as whether or not there are nascent universal principles concerning the control of public power, how strong the impact of particular legal traditions is, and to what extent international law concepts have had harmonizing and strengthening effects on internal public-power control.