Do Constitutional Courts Use Balancing to Promote Judicial Activism?

Niels Petersen

In an empirical analysis of the German and the South African constitutional courts and the Canadian Supreme Court, the study presented in this video examines the use of the concept of balancing. Contrary to the common understanding, NIELS PETERSEN shows that courts do not use balancing to engange in judicial activism. Instead, they restrain themselves and employ proportionality as an instrument of rationality review, i.e. a means for compensating political market failures.

DOI:

https://doi.org/10.21036/LTPUB10012

Researcher

Niels Petersen is a Professor of Public Law, International Law and EU Law at the University of Muenster and a Research Affiliate at the Max Planck Institute for Research on Collective Goods in Bonn (Germany). His research interests are law and social sciences, international law, comparative constitutional law and constitutional theory as well as antitrust law. He was a Hauser Research Scholar and Emile Noël Fellow at the New York University School of Law.

University of Münster (Westfälische Wilhelms-Universität Münster)

Founded in 1780, the WWU Münster is a university with tradition. 250 courses of study, 43,000 students, a staff of 5,850 including 590 professors - as well as 550 partnership agreements with universities and other academic institutions all over the world. Münster University has developed a strong research profile in natural sciences, humanities, medicine, law and business administration. It targets top-level research in high-performance areas and combines this with promoting first-class junior research staff. (Source: WWU)

Original Publication

Verhältnismäßigkeit als Rationalitätskontrolle. Eine Rechtsempirische Studie Verfassungsrechtlicher Rechtsprechung zu den Freiheitsgrundrechten

Niels Petersen

Published in 2015