Proportionality, Judicial Review, and Global Constitutionalism

Aharon Barak’s Legal Ideology in the Context of European Constitutionalism

“…This democracy commercialism tends to be called post-democracy and is characterized by the following features: 1) devaluation of achievements of governmental institutions; 2) expanding privatization and commercialization of the public sector, particularly education, health care and other social services; 3) increasing role of transnational corporations and lobby groups in policy and legislation. 32 Here we observe the dangerous tendency of sociability loss or alienation. Democratic procedures chain the powers of management and control as well as responsibility, 29 Charles Taylor In this context it should be noted that Barak discerns formal democracy as concerned with the electoral process governed by the majority and expressed in legislative supremacy, and substantive democracy as concerned with fundamental values and human rights.…”

The Strict Necessity Test on Data Protection by the CJEU: A Proportionality Test to Face the Challenges at the Beginning of a New Digital Era in the Midst of Security Concerns

“…Symbolically, Sweet and Mathews speak of proportionality balancing. 194 Balancing by people can hardly be assessed as purely objective. People, including judges, are by nature subjective.…”

A cosmopolitan legal order: Constitutional pluralism and rights adjudication in Europe

“…The Convention quickly developed into a 'shadow' or 'surrogate' constitution (Keller and Stone Sweet 2008 ) in every state that did not possess its own judicially-enforceable charter of rights (including original signatories, Belgium, France, The Netherlands, Switzerland, and the UK). In the 1990s, Finland, Norway, and Sweden enacted new Bills of Rights, closely modeled on (and invoking) the ECHR, in order to fi ll gaps in their own constitutions.…”

“…PA is tailor-made for the adjudication of qualifi ed rights in a pluralist setting, and it is the crucial mechanism of coordination in the cosmopolitan order (Kumm 2004 ;Stone Sweet and Mathews 2008 ). In the standard sequence, once a judge determines that a right is in play, s/he then verifi es (a) that the measure was properly designed to achieve a state purpose (means are rationally related to legitimate ends), and (b) that the measure does not infringe more on the right than is necessary to achieve objectives (a test for least-restrictive alternatives).…”