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It argues that proportionality helps judges mitigate what Robert Cover called the ‘inherent difficulty presented by the violence of the state’s law acting upon the free interpretative process’.
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For an argument about law’s ‘homicidal potential’, by contrast—or, perhaps, in relation to—its jurispathic dimension, see As Habermas put it, ‘norms of action appear with a binary validity claim and are either valid or invalid; we can respond to normative sentences, as we can to assertoric sentences, only by taking a yes or no position or by withholding judgment’, in There are limits inherent in the process of justification.
Robert Cover refers to them as tragic limits in the common meaning that can be achieved in justifying the social organization of legal violence. Kumm argues that proportionality marks the shift from interpretation to justification: ‘The proportionality test merely provides a structure for the demonstrable justification of an act in terms of reasons that are appropriate in a liberal democracy.
While the normative appeal of proportionality can be traced to the perception of its integrative aims, in reality, judicial technique does not entirely live up to those aims.
Proportionality succumbs to pressures from the centrifugal forces of universalism and particularism that it seeks to integrate.
During questioning it was alleged that a memorandum written by Tushnet to Marshall had a significant influence on the outcome of the case.
Wade, the 1973 case that struck down state laws prohibiting abortion.
More Reacting to the poor record of the UK Human Rights Act 1998 and similar provisions in protecting human rights, this book explores ways of promoting human rights more effectively through political and democratic mechanisms.
Criticizing the ‘juridification’ of human rights through the transferring of the prime responsibility for defining human rights violations to courts and advocating the greater ‘politicization’ of human rights responsibilities through such measures as enhanced Parliamentary scrutiny of existing and proposed legislation, a group of twenty-four human rights scholars present a variety of perspectives on the disappointing human rights outcomes of recent institutional developments and consider the prospects of reviving the moral force and political implications of human rights values.