CEU Electronic Theses and Dissertations, 2013
| Author | Brown, Jeremy |
|---|---|
| Title | The Doctrine of Proportionality: A Comparative Analysis of the Proportionality Principle Applied to Free Speech Cases in Canada, South Africa and the European Convention on Human Right and Freedoms |
| Summary | This thesis argues that despite the criticism often levied against proportionality it is a sound and appropriate tool for reaching clear, justified and defensible judgments that also provide an adequately fair degree of predictability and certainty. The thesis argues that the criticisms of incoherent, inconsistent, and unprincipled judgments are not the result of proportionality as an analytical framework but rather by the doctrine’s misapplication. The author suggests that the courts are misapplying proportionality review in three primary ways: (1) The test they employ does not contain all four necessary components of proportionality – proper purpose, rational connection, necessity and proportionality stricto sensu (balancing); (2) courts are engaging in balancing at inappropriate stages of the analysis; (3) and courts are not being upfront about how they are conducting the final proportionality strico sensu stage. This thesis suggests that each component of proportionality requires a particular and specific investigation, which must be followed in order for the analysis to be properly applied. If all four components are not included in the test, then this makes the proper analysis impossible. The author argues that the stages of proportionality analysis should be carried out as a series of distinct steps in sequential order employing balancing techniques only in the final proportionality stricto sensu stage of the analysis. |
| Supervisor | Hamilton, Michael |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2013/brown_jeremy.pdf |
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