Balancing, Proportionality, and Constitutional Rights

In the theory and practice of constitutional adjudication, proportionality review plays a crucial role. At a theoretical level, it lies at core of the debate on rights adjudication; in judicial practice, it is a widespread decision-making model characterizing the action of constitutional, supra-national and international courts. Despite its circulation and centrality in contemporary legal discourse, proportionality in rights-adjudication is still extremely controversial. It raises normative questions—concerning its justification and limits—and descriptive questions—regarding its nature and distinctive features. The chapter addresses both orders of questions. Part I centres on the justification of proportionality review, the connection between proportionality, balancing and theories of rights and the critical aspects of this connection. Part II identifies and analyses the different forms of proportionality both in review, as a template for rights-adjudication, and of review, as a way of defining the scope and limits of adjudication

Unpacking "Transnational Citizenship"

What “counts” as transnational citizenship? Like the related notions of global or transnational civil society, the term’s appeal to internationalists is greater than its conceptual precision. However, a wide range of empirical trends do raise questions about the nation-state-based approach to the concept of citizenship. In an effort to avoid conceptual stretching, this essay assesses the degree to which the concept of transnational citizenship helps to address issues raised by “globalization from below.” Because many approaches to citizenship focus on the dynamics and texture of participation, this review incorporates recent findings in sociology, anthropology, and geography into the political science discussion. The essay is organized by propositions that bring together analysis of two distinct empirical literatures, on transnational civil society and on migrant civic and political participation. The review concludes by contrasting two cross-cutting sets of definitional choices. The discussion is framed by a recognition that definitions of citizenship vary along two main dimensions: in their emphasis on rights versus membership, and in high versus low intensity. Only a very bounded definition of transnational citizenship holds up under conceptual scrutiny, limited to what is also called dual or multiple citizenship for migrants

Citizenship in flux: The figure of the activist citizen

Throughout the twentieth century the figure of citizenship that has been dominant since the eighteenth and nineteenth centuries has begun to change. We have witnessed the emergence of new rights including ecological, sexual and indigenous rights as well as blurring of the boundaries between human and civil, political and social rights and the articulation of rights by (and to) cities, regions and across states. We have witnessed the birth of new ‘acts of citizenship’: both organized and spontaneous protests to include situationist and carnivalesque forms. We have also witnessed the emergence of ‘activist’ international courts (and judges), as well as new media and social networking as sites of struggles. How subjects act to become citizens and claim citizenship has thus substantially changed. This article interprets these developments as heralding a new figure of citizenship, and begins the important task of developing a new vocabulary by which it can be understood