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The principle of proportionality is currently one of the most discussed topics in the field of comparative constitutional law. Many critics claim that courts use the proportionality test as an instrument of judicial self-empowerment. Proportionality and Judicial Activism tests this hypothesis empirically; it systematically and comparatively analyses the fundamental rights jurisprudence of the Canadian Supreme Court, the German Federal Constitutional Court and the South African Constitutional Court. The book shows that the proportionality test does give judges a considerable amount of discretion. However, this analytical openness does not necessarily lead to judicial activism. Instead, judges are faced with significant institutional constraints, as a result of which all three examined courts refrain from using proportionality for purposes of judicial activism.
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P R O P O RT IO NA L I T Y A N D J U D IC IA L AC T I V I SM he principle of proportionality is currently one of the most discussed topics in the ield of comparative constitutional law. Many critics claim that courts use the proportionality test as an instrument of judicial selfempowerment. Proportionality and Judicial Activism tests this hypothesis empirically; it systematically and comparatively analyses the fundamental rights jurisprudence of the Canadian Supreme Court, the German Federal Constitutional Court and the South African Constitutional Court. he book shows that the proportionality test does give judges a considerable amount of discretion. However, this analytical openness does not necessarily lead to judicial activism. Instead, judges are faced with signiicant institutional constraints, as a result of which, all three examined courts refrain from using proportionality for purposes of judicial activism. Niels Petersen is Professor of Public Law, International Law and EU Law at the University of Münster, Germany. He is the author of a number of articles published in leading comparative constitutional law journals. P R O P O RT IO NA L I T Y A N D J U D IC IA L AC T I V I SM Fundamental Rights Adjudication in Canada, Germany and South Africa N I E L S P E T E R SE N University of Münster, Germany University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 4843/24, 2nd Floor, Ansari Road, Daryaganj, Delhi – 110002, India 79 Anson Road, #06-04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107177987 10.1017/9781316823330 © Niels Petersen 2017 his publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2017 A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data Names: Petersen, Niels, author. Title: Proportionality and judicial activism: fundamental rights adjudication in Canada, Germany and South Africa / Niels Petersen, Professor of Public Law, International Law and EU Law, University of Münster – Faculty of Law. Description: Cambridge, United Kingdom; New York, NY, USA: Cambridge University Press, 2017. | Based on author’s thesis (Habilitation – Universiẗt, Bonn, 2012) issued under title: Verḧltnism̈ssigkeit als Rationaliẗtskontrolle: eine rechtsempirische Studie verfassungsrechtlicher Rechtsprechung zu den Freiheitsgrundrechten. | Includes bibliographical references a