UBC Theses and Dissertations
Proper proportions of law : justifying democratic credentials of proportionality analysis in constitutional adjudication Ponomarenko, Iryna
When scholars speak of proportionality, they most likely speak of the multi-pronged analytical frame for norm-based argumentation — which it certainly is. Indeed, be it the Canadian Oakes test or European “fair balance,” proportionality is deemed to be “the best possible” discursive technique to achieve “a positive partnership” between conflicting constitutional rights and laudable legislative objectives. However, there is more to proportionality than a formulaic framework: as canvassed throughout the thesis, there exist notorious puzzles regarding the concepts and vocabularies involved in the proportionality rhetoric; there is likewise a need to critically analyze the assumptions and presuppositions underlying modern proportionality discourse. Last but not least, the very invocation of proportionality into rights adjudication calls for doctrinal — as well as legal and democratic — justification. From the European Union to Canada, from South Africa to Brazil, constitutional jurisprudence is currently filled with proportionality formulaic parlance, whereas — and this last point is of particular significance — very few Constitutions explicitly speak of proportionality, not to mention the multi-pronged tests. In this thesis, I take a wider view of the matter and propose a new paradigm for bridging the epistemological gap between the constitutional need to reconcile competing private and public interests, on one hand, and invocation of proportionality formula into constitutional jurisprudence, on the other.
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