Proportionality increasingly dominates legal imagination. Its spread, accompanied by a global paradigm of constitutional rights, appears to be an irresistible natural development. Today, proportionality is perceived as a model of legal reasoning or even an emerging global grammar of constitutional adjudication. During the last decades, it has been at the core of a prescriptive human rights theory first developed in the work of Robert Alexy and claiming universal application. In comparative law, proportionality is a commonly used example of a legal transplant that attests to the convergence between legal systems, if not globally, at least within Europe. Continue reading
Tag Archives: Proportionality
Proportionality, Exception, and Transformation in Times of Pandemics: Expanding the Spectrum of Constitutional Relevance
As the literature on authoritarian constitutionalism and democratic decay has repeatedly remarked, there are several factors that distinguish the wave of neo-authoritarianism that currently travels the world from earlier instantiations of the genre. One of them is the fact that contemporary neo-authoritarians do not outlaw the opposition, cancel elections, shut down the media, or violently repress social discontent, but rather use softer and often legally admissible ways of advancing their agenda – generating patterns of gradual but sustained and ever deeper democratic erosion, instead of sudden collapse. A second distinguishing factor is that the current authoritarian wave affects as much “new” democracies that have experienced rule-of-law and democratic-quality problems for long, as prestigious constitutional democracies we considered to be exceedingly consolidated. There is a sort of unexpected levelling-down, “equalization-in-the-bad” component to current developments. Continue reading
History as a Legal Argument – The Naulilaa Case (1928)
The question about the historical relation between international law and colonialism (and its legacy) has grown in relevance over the last twenty-odd years. Critical scholars speak of international law’s “complete complicity with the colonial project” – meaning the exploitation and domination of the global south. They point to the ‘dark side’ of the promises of ‘order’, ‘equality’, and ‘(world) peace’ inherent in the enlightened idea of the ius gentium europaeum.
It is important to point out that nineteenth-century contemporaries were already well aware of the relation between international law and colonialism but they did not look at it from a moral perspective. Continue reading