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Lethal Self Defense Against a Rapist and the Challenge of Proportionality: Jewish Law Perspective
In: 26 Columbia Journal of Gender and Law 123-181 (2013)
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The function of proportionality analysis in European law
In: Nijhoff Studies in European Law 8
Preliminary Material -- Introduction -- pa in eu Law -- pa in echr Law -- Conclusions to Part 1 -- uk Courts and pa -- Norwegian Courts and pa -- Conclusions to Part 2 -- pa: Between Rationality and Reasonableness -- pa: Between Substance and Procedure -- pa and the Role of Courts -- pa as a (General) Principle of Law -- pa and the Rule of Law -- Conclusions to Part 3 -- Conclusions with Resolutions -- Bibliography -- Index.
Proportionality, reasonableness and standards of review in international investment law and arbitration
In: Elgar international investment law
Proportionality in Australian Constitutional Law
Proportionality has been used as an analytical method in the constitutional jurisprudence of courts around the world, including in Australia. The method has not, however, been free from controversy. Since its first introduction into Australian constitutional law, there have been debates regarding the appropriateness of proportionality testing in this context.To date, these debates have been lacking in one important respect: they have not been sufficiently grounded in theory. In times when the global literature on the subject was relatively nascent and applications in comparative constitutional contexts sparse, the under-theorisation of Australian proportionality was understandable. This is no longer the case. The burgeoning international literature and jurisprudence in this field has in recent years generated a rich body of judicial and academic thought from which to elicit a properly theorised consideration of proportionality. Drawing on these resources, this thesis proposes a theoretical framework for proportionality. It uses this framework to explore a key question in the Australian context: when is proportionality an appropriate analytical tool in constitutional jurisprudence? In examining this question, the thesis considers the primary concerns regarding the appropriateness of proportionality in Australian constitutional law and how these might be addressed. It also makes principled suggestions for the development of Australian doctrine.
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Proportionality Review in Administrative Law
In: COMPARATIVE ADMINISTRATIVE LAW, 2d ed., Susan Rose-Ackerman, Peter L. Lindseth & Blake Emerson, eds., Edward Elgar Publishing, 2017
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The Law and Economics of Proportionality in Discovery
In: Georgia Law Review, Band 50, S. 1093
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Necessity and Proportionality in the Law of War
In: Cambridge Handbook on Just War (Larry May ed, CUP 2016)
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The Principle of Proportionality and European Contract Law
In: Maastricht Faculty of Law Working Paper
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Working paper
Searching for Proportionality in U.S. Administrative Law
In: The Judge and the Proportionate Use of Discretion (Routledge, 2015)
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Proportionality in EU Law: A Balancing Act?
In: The Cambridge yearbook of European legal studies: CYELS, Band 15, S. 439-466
ISSN: 2049-7636
AbstractThe proportionality principle plays a key role in constitutional review of public acts. Its use legitimises the constitutional claims of EU law in the context of a multi-level polity system. The application of proportionality in the EU differs based on whether legal acts of the EU or of its Member States are concerned. In the former case, a manifestly disproportionate test is usually applied, while in the latter case, a least restrictive means test (LRM) is normally used. Both are conditioned by the degree of integration achieved. In future, the use of the principle may involve increasing attention being paid to individual rights.
Principle of Proportionality and European Competition Law
In: ANDRAŠKO, J., HAMUĽÁK, J.: THE MILESTONES OF LAW IN THE AREA OF CENTRAL EUROPE. Collection of Papers From the International Academic Conference of Ph.D. Students and Young Researchers. Bratislava: Univerzita Komenského v Bratislave, Právnická fakulta, 2018, pp. 39-46, 2018
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Analogy at war: proportionality, equality and the law of targeting
This text is an inquiry into how the international community is understood in and through international law. My prism for this inquiry shall be the principle of proportionality in international humanitarian law, relating expected civilian losses to anticipated military advantage. To properly understand proportionality, I have to revert to the structure of analogical thinking in the thomistic tradition. Proportionality presupposes a third element to which civilian losses and military advantage can be related. In a first reading, I develop how this tradition of thought might explain the difficulties contemporary IHL doctrine has in understanding proportionality. If military commanders misconceive the third element as the sovereignty of their own state, they will invariably apply the proportionality principle in a paternalistic manner. This would obviate the most rudimentary idea of equality among states and do away with the common of an international community. In a second reading, I shall explore whether this third element could instead be thought of as a demos, while retaining the existing framework of analogical thinking. My argument is that this secularizing replacement is possible. Practically, its consequence would be a radical change in the task of the responsible military commander determining proportionality. That commander would now need to rethink civilians endangered by an attack as a demos whose potentiality must be preserved.
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