Proportionality in Law

1. Front Matter

   Pages i-xi

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2. The Principle of Proportionality and Fundamental Rights

   1. Front Matter

      Pages 1-1

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   2. Proportionality as a Universal Human Rights Principle

      • Jan Sieckmann

      Pages 3-24

   3. Proportionality in Social Rights Adjudication: Making It Workable

      • Laura Clérico

      Pages 25-48

   4. Gains and Losses in Balancing Social Rights

      • David Duarte

      Pages 49-69

   5. Proportionality in Its Narrow Sense and Measuring the Intensity of Restrictions on Fundamental Rights

      • Jorge Silva Sampaio

      Pages 71-110

   6. Conflicts Between Fundamental Rights Norms

      • Luka Burazin

      Pages 111-117

3. Proportionality, Balancing and Legal Principles

   1. Front Matter

      Pages 119-119

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   2. Consistency in Balancing: From Value Assessments to Factor-Based Rules

      • Giovanni Sartor

      Pages 121-136

   3. Balancing Principles and A Fortiori Reasoning

      • Pedro Moniz Lopes

      Pages 137-156

   4. Some Fundamental Problems Concerning Alexy’s Notion of Legal Principles

      • Rúben Ramião

      Pages 157-170

   5. Some Thoughts About the Limits of Alexy’s Conception of Principles and Balancing

      • David Martínez-Zorrilla

      Pages 171-192

This book addresses the principle of proportionality, which is currently one of the most important instruments of judicial review, from both analytical and theory of law perspectives. As such, the analysis provided is far more comprehensive and can be applied to all areas of law, not just constitutional law. On the one hand, the volume offers a broad perspective on several aspects related to proportionality, such as its structure, the balancing methodology and the distinction between rules and principles. On the other, it provides an innovative, normativist and analytical approach to proportionality, helping readers understand its structure and behaviour.

• Balancing
• Legal principles
• Fundamental rights
• Human rights
• Social rights
• Implicit principles
• Robert Alexy
• Rule of law
• Judicial review
• Discretion
• Constitutional law
• Legislation
• Legislative procedure
• Lawmaking

• Public Law Department, University of Lisbon School of Law, Lisbon, Portugal

  David Duarte, Jorge Silva Sampaio

​David Duarte is a Professor at the Faculty of Law of the University of Lisbon where he was awarded his PhD. His main fields of research are legal theory, fundamental rights, and administrative law. He is in the Board of Directors of the Portuguese Association for Legal Theory, Legal Philosophy and Social Theory (ATFD). Published works such as Structuring Addressees in Fundamental Rights Norms: An Application. Fundamental Rights, Justification and Interpretation. Edited by Kenneth Himma and Bojan Spaic. Eleven International Publishing, 2016; Analogy and Balancing: The Partial Reducibility Thesis and its Problems. Revus. Journal for Constitutional Law and Philosophy of Law, 25, 1-11; 2015, An Experimental Essay on the Antecedent and Its Formulation. i-Lex, 16. 37-60.
Jorge Silva Sampaio is a Ph.D. researcher and a guest lecturer at the University of Lisbon School of Law, as well as an associate researcher at CIDP—Lisbon Centre for Research in Public Law. Hismain fields of research are legal theory and legal science, constitutional and administrative law and human rights. He is also a Law clerk at the Portuguese Constitutional Court. He has authored several papers and books on public law and legal theory, including “The Contextual Nature of Proportionality and Its Relation with the Intensity of Judicial Review“, in Judicial Activism, Springer, 2015; O controlo jurisdicional das políticas públicas de direitos sociais, Coimbra Editora, 2015.

Policies and ethics