Proportionality and deference : constitutional rights and the separation of powers
Title: Proportionality and deference : constitutional rights and the separation of powers
Author: TUOVINEN, Juha
Citation: Florence : European University Institute, 2017
Series/Number: EUI PhD theses; Department of Law
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.
Defence date: 4 December 2017; 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
Type of Access: embargoedAccess