The principle of proportionality in European and comparative perspective

Student thesis: Doctoral Thesis

Abstract

This thesis critically examines the application of the principle of proportionality in fundamental rights judgments of three courts - the Maltese Constitutional Court, the European Court of Human Rights and the Court of Justice of the European Union - in the light of Robert Alexy's theory of proportionality. The thesis begins by defending Alexy's three-stage model of proportionality analysis as the most appropriate and effective method of adjudicating conflicts between fundamental rights, or fundamental rights and general interests. However, close examination of the jurisprudence of the three selected courts reveals that each applies a different - and reduced - version of the principle of proportionality. The thesis seeks to explain these variations in terms of the nature of each of the courts, the judicial authority they have developed throughout the years and the nature of the legal system that they serve, which have influenced their juridical mentality, the external considerations they make, the different values they hold and lastly, the different conceptions of proportionality that they have. Nevertheless, it argues that the courts' deviation from Alexy's model reduces the efficiency and effectiveness of the courts' respective approaches to fundamental rights adjudication and recommends that it is still possible to adhere to this model if they are willing to fine-tuning their conception of the principle of proportionality.
Date of Award20 Apr 2021
Original languageEnglish
Awarding Institution
  • University Of Strathclyde
SponsorsUNIVERSITY OF MALTA
SupervisorChristopher McCorkindale (Supervisor) & Mary Neal (Supervisor)

Cite this

'