Book contents
- Local Meanings of Proportionality
- Cambridge Studies in Constitutional Law
- Local Meanings of Proportionality
- Copyright page
- Contents
- Acknowledgements
- 1 Proportionality as a Cultural Practice
- Part I Questioning the Success of Proportionality
- Part II Great Expectations
- 5 Searching for a Legal Science
- 6 Searching for an English Public Law
- 7 Searching for a ‘Species of Sympathetic Magic’
- Conclusion of Part II
- Part III European Integrations
- Conclusion
- Bibliography
- Index
5 - Searching for a Legal Science
from Part II - Great Expectations
Published online by Cambridge University Press: 08 July 2021
- Local Meanings of Proportionality
- Cambridge Studies in Constitutional Law
- Local Meanings of Proportionality
- Copyright page
- Contents
- Acknowledgements
- 1 Proportionality as a Cultural Practice
- Part I Questioning the Success of Proportionality
- Part II Great Expectations
- 5 Searching for a Legal Science
- 6 Searching for an English Public Law
- 7 Searching for a ‘Species of Sympathetic Magic’
- Conclusion of Part II
- Part III European Integrations
- Conclusion
- Bibliography
- Index
Summary
In this chapter, I argue that rather than echoing a perception of fundamental rights as principles, and of law as practical reasoning, as the Alexyan theory would want it, the force of proportionality in French public law lies in its aura of value-proof objectivity and scientific correctness. The spread of proportionality thus expresses the mystery surrounding political moral choices in French legal thought. At the same time, it expresses domestic lawyers’ search for a legal science, exempt from subjective moral or ideological evaluations, which could rationalise such choices. Proportionality in French public law has not served so much as a tool for legal change, as the transplant account of its spread would suggest, but rather as a conceptual tool in the hands of the doctrine for systematising and justifying evolutions in domestic judicial review.
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- Local Meanings of Proportionality , pp. 143 - 186Publisher: Cambridge University PressPrint publication year: 2021