Description

In this book, Alec Stone Sweet and Jud Mathews focus on the law and politics of rights protection in democracies, and in human rights regimes in Europe, the Americas, and Africa. After introducing the basic features of modern constitutions, with their emphasis on rights and judicial review, the authors present a theory of proportionality that explains why constitutional judges embraced it. Proportionality analysis is a highly intrusive mode of judicial supervision: it permits state officials to limit rights, but only when necessary to achieve a sufficiently important public interest. Since the 1950s, virtually every powerful domestic and international court has adopted proportionality analysis as the central method for protecting rights. In doing so, judges positioned themselves to review all important legislative and administrative decisions, and to invalidate them as unconstitutional when such policies fail the proportionality test. The result has been a massive – and global – transformation of law and politics. The book explicates the concepts of ‘trusteeship’, the ‘system of constitutional justice’, the ‘effectiveness’ of rights adjudication, and the ‘zone of proportionality’. A wide range of case studies analyse: how proportionality has spread, and variation in how it is deployed; the extent to which the U.S. Supreme Court has evolved and resisted similar doctrines; the role of proportionality in building ongoing ‘constitutional dialogues’ with the other branches of government; and the importance of the principle to the courts of regional human rights regimes. While there is variance in the intensity of proportionality-based dialogues, such interactions are today at the very heart of governance in the modern constitutional state and beyond.

About the Author

Alec Stone Sweet is the Saw Swee Hock Centennial Professor of Law, National University of Singapore. He has published widely in the fields of international law and politics, and comparative law and politics, including ten books with Oxford University Press, the most recent being: The Evolution of International Arbitration: Judicialization, Governance, Legitimacy (2017); A Cosmopolitan Legal Order: Kant, Constitutional Justice, and the European Convention on Human Rights (2018); and Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach (2019).

About the Commentators

Jaclyn Neo is an Associate Professor of Law at the National University of Singapore. Her work aims to forefront Asian jurisdictions and mainstream them in comparative constitutional law. Jaclyn has published in leading journals in her field. She is the sole editor of Constitutional Interpretation in Singapore: Theory and Practice (Routledge, 2017) and co-editor of Pluralist Constitutions in Southeast Asia (Hart, 2019), and Regulating Religion in Asia: Norms, Modes, and Challenges (CUP 2019). Jaclyn has also served as a guest editor for various journals including the Singapore Academy of Law Journal, Journal of Law, Religion, and State, as well as the Journal of International and Comparative Law. Her work has been cited by the courts in Singapore and by the Supreme Court of India.

Nicole is Associate Professor of Law at the University of Auckland, and formerly from National University of Singapore. Nicole’s research field is the philosophy of law, including theories of authority and the jurisprudential challenges of interaction between state and non-state legal orders. Her publications include Authorities: Conflicts, Cooperation, and Transnational Legal Theory (OUP 2013) and, with Andrew Halpin, edited In Pursuit of Pluralist Jurisprudence (CUP 2017). Nicole has published a number of commissioned book chapters and her articles appear in leading law journals. Her current research includes work on a monograph, Officials, and a five-year project on Legalities: Jurisprudence without Borders, under a Rutherford Discovery Fellowship awarded by New Zealand’s Royal Society Te Apārangi. Her ongoing collaborative projects examine fiduciary theories of the state, the idea of office in public and private law, theories of recognition, and the theoretical foundations of indigenous laws.

Po Jen Yap is a Professor at The University of Hong Kong (HKU), Faculty of Law, where he specializes in Constitutional and Administrative law. He graduated from the National University of Singapore with an LLB degree and he obtained LLM qualifications from both Harvard Law School and University College London. He also has a PhD degree from the University of Cambridge. He is an Advocate and Solicitor of the Supreme Court of Singapore and an Attorney at Law in the State of New York (USA). He is the author and editor of over 50 books, book chapters, journal articles, and/ or case commentaries. His first sole-authored monograph “Constitutional Dialogue in Common Law Asia” was published by Oxford University Press in 2015 and was awarded HKU’s University Research Output Prize in 2016. He is also the recipient of HKU’s 2016 Outstanding Young Researcher Prize. His second sole-authored monograph “Courts and Democracies in Asia” was published by Cambridge University Press in October 2017.