האם המחוקק ירה בתותח כדי לפגוע בזבוב?על מידתיות במשפט Did the Lawmaker Shoot a Cannon to Hit a Fly? On Proportionality in Law
In: 15 LAW & BUSINESS 337 (2012)
In: 15 LAW & BUSINESS 337 (2012)
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In: Journal of international economic law, Band 4, Heft 3, S. 441-480
ISSN: 1464-3758
In: LSE Legal Studies Working Paper No. 03/2022
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In: Marine corps gazette: the Marine Corps Association newsletter, Band 87, Heft 9, S. 60-62
ISSN: 0025-3170
In: Studien zum ausländischen und internationalen Privatrecht 500
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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In: COMPARATIVE ADMINISTRATIVE LAW, 2d ed., Susan Rose-Ackerman, Peter L. Lindseth & Blake Emerson, eds., Edward Elgar Publishing, 2017
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In: American journal of international law: AJIL, Band 87, Heft 3, S. 391-413
ISSN: 2161-7953
Proportionality is a fundamental component of the law on the use of force and the law of armed conflict—the jus ad bellum and the jus in bello. In the former, it refers to a belligerent's response to a grievance and, in the latter, to the balance to be struck between the achievement of a military goal and the cost in terms of lives. The legitimate resort to force under the United Nations system is regarded by most commentators as restricted to the use of force in self-defense under Article 51 and collective security action under chapter VII of the UN Charter. The resort to force in both these situations is limited by the customary law requirement that it be proportionate to the unlawful aggression that gave rise to the right. In the law of armed conflict, the notion of proportionality is based on the fundamental principle that belligerents do not enjoy an unlimited choice of means to inflict damage on the enemy. Since the entry into force of Protocol I to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, proportionality has been both a conventional and a customary principle of the law of armed conflict.
In: Georgia Law Review, Band 50, S. 1093
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In: Proportionality in Private Law, pp. 15-32, Franz Bauer, Ben Köhler, eds., Mohr Siebeck, May 2023
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In: Legal issues of economic integration: law journal of the Europa Instituut and the Amsterdam Center for International Law, Universiteit van Amsterdam, Band 35, Heft 3, S. 259-268
ISSN: 1566-6573, 1875-6433
In: Cambridge Handbook on Just War (Larry May ed, CUP 2016)
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In: American journal of international law, Band 102, Heft 4, S. 715-767
ISSN: 0002-9300
World Affairs Online
In: American journal of international law: AJIL, Band 102, Heft 4, S. 715-767
ISSN: 2161-7953
In courts and tribunals, political arenas like the United Nations Security Council, and popular and scholarly journals, discursive recourse to the principle of proportionality has become frequent and vehement. It tends most audibly to arise in the midst of military conflicts pitting states against each other. But it also emerges in interstate trade disputes and when states, seeking to protect national security or public health, restrict internationally protected human rights.