Malala Yousafzai won the Nobel Peace Prize when she was seventeen. In part, the world knows about her because when the Taliban prohibited girls from attending school in Afghanistan, she spoke up about it, writing articles and giving talks. As is clear by her writing, Malala has strong values that include justice and equality for women as well as a love of learning and education. She also values safety. In making her choice to speak up and criticize her government’s decision, Malala was aware that she was increasing risks to herself and her family. In response, the Taliban shot (then fifteen-year-old) Malala in the head while she was on a school bus. Thankfully, she survived and continues to advocate for a future where girls are free to learn and lead.

Malala made decisions based on trade-offs among her values, even when the priority she placed on equality and justice made her vulnerable to Taliban hostility and increased her own risk of death.

Chapter 3 focuses on the ECtHRs general principles concerning ECHR Article 9 in its jurisprudence. It contends that the ECtHR recognises the forum internum and forum externum relationship, intuitively understanding that, because actions flow from the forum internum, the forum internum is always relevant to some degree in Article 9 cases. As such, this chapter recommends conceptualising the forum internum and forum externum aspects of the right on a continuum. Whilst, this chapter argues, forum internum relevance is the principal factor weighing in favour of the applicant, it contends that it is not the only factor the ECtHR takes into consideration in Article 9 cases; the ECtHR balances in all Article 9 cases, weighing up factors pointing to a violation of Article 9 (primarily, but not forum internum relevance) with countervailing factors pointing away from a violation, to reach its decision. Given the ECtHR offers a range of protection as a result, this chapter suggests that a useful way of grouping Article 9 cases for analysis is a loose concentric circles model, comprising three circles, as this better reflects the ECtHR jurisprudence than a binary and hierarchical framework.

This chapter discusses the interpretation and application of the complex notions of necessity and proportionality, a cornerstone for any human rights adjudication and rights balancing exercise. Through an original and comprehensive analysis of the practice of the human rights bodies, this chapter shows the reader how these bodies managed to reach convergence on the interpretation and application of necessity and proportionality, despite all the impending factors.

Compared to figures like Hermann Heller or Carl Schmitt, Rudolf Smend´s heritage in German constitutional law seems to be at the same time more evident and more obscure. More evident because powerful constitutional lawyers like Konrad Hesse, Horst Ehmke and Peter Häberle were heavily influenced by Smend and because, last but not least, the German Federal Constitutional Court took up several parts of Smend´s doctrine in its judgements – mostly in the area of fundamental rights. More obscure because it is highly debatable not only whether Smend´s legal thought is actually still alive in dominant constitutional doctrines like the proportionality test, the balancing of constitutional goods, cooperative federalism or even fundamentals of immigration and citizenship law – but also whether Smend´s influence on Germany´s material constitution has been, on the whole, advantageous for post-war legal development. Beyond that, it is worthwhile looking at how Smend´s ideas were assimilated, but also transformed in important ways in highly influential casebooks and monographs such as Konrad Hesse´s Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland.

This chapter aims to analyze one aspect of the proportionality test in the case law of the Brazilian Supreme Court: its use as a tool for deciding cases involving socioeconomic rights. If these rights are one of the core elements of a transformative constitution, using the proportionality test to decide these cases raises the question of its transformative potential. We argue that there are several reasons for concluding that proportionality does not play a transformative role in Brazil. Some of these reasons are related to the general debate on the transformative potential of litigation; others are related to how the Brazilian Supreme Court uses the proportionality test, which could be summarized as follows: First, the Court has often used the proportionality test as a rhetorical device only; second, due to peculiarities of the decision-making process of the Court, proportionality has never been employed by the majority of its judges; third, in the realm of socioeconomic rights, the role of proportionality has been frequently undermined by other types of reasoning.

Experts increasingly play a more central role at all levels of public governance. As holders of expert knowledge, they are considered trustworthy providers of certainty and answers in the face of increased complexity, interdependence and the fast-changing pace of life. The authoritative certainty to which they lay claim causes them to be frequently called upon and consulted by policy-makers. Their importance has increased as policy-making has become more complex and intense.

The essay discusses the character of transnational legal expertise as a practice of making and unmaking of conceptual distinctions and moving between principles that reflect different institutionally embedded legal projects. At the same time, lawyers are trained also to carry out rhetorical performances that create the impression that these countervailing legalities may be stabilized through techniques of balancing. As a consequence, the transnational legal space appears both as a field of struggle and professional solidarity. Even as lawyers regard this as nothing other than a natural feature of the casuistry of the law itself, it alienates lay audiences that have drawn from lawyers’ constant disagreement the conclusion that legal expertise is just a species of elite opinion.

This study has pursued a balance between bondholder protection and respect for sovereign debt restructuring at various stages of litigation and arbitration proceedings. An appropriate balance inevitably depends on the context and circumstances of specific cases and cannot, by its nature, be articulated in a precise manner. Instead, the present study has pursued a framework within which an appropriate balance may be explored and attained in specific cases. Such a framework is constructed by applicable contract, statutory and treaty provisions to be interpreted in a manner that certain deference is paid to debtor sovereigns’ policy decision-making during debt restructuring and that the chance of checks and balances by courts or tribunals is ensured.

Chapter 8 concludes the analysis of the most important substantive investment treaty clauses by examining the fair and equitable treatment standard. It argues that armed conflict does not put into question certain guarantees of fair decision-making and adjudication, whereas it proposes a balanced relativisation of the protection of investor expectations in the context of armed conflict. The determination of whether treatment is fair and equitable can only be made in the light of the individual circumstances of conflict. When balancing the interests of investors in a stable regulatory framework against the state’s regulatory interests, the urgency and severity of these public interests in armed conflict should be accorded particular weight. Under the proposed reading, the fair and equitable treatment standard is flexible enough to consider the circumstances of an armed conflict in a balanced and nuanced way. Well aware of existing controversies and opposing lines of jurisprudence, the chapter suggests ways to embrace the standard’s flexible nature and counteract tendencies in arbitral practice that arguably overemphasise investor interests.

Complex sentences stand at the edge of discourse: they represent conventionalized forms of discourse cohesion. Coordination and adverbial subordination express the same types of semantic relations between events. Coordination packages the related events in a symmetrical, complex figure construal; adverbial subordination packages them in an asymmetrical, figure--ground construal between a matrix clause and a dependent clause. Referents and other concepts may be coordinated as well. Both coordination and adverbial subordination share the same strategies. Both may use conjunctions to express the relation between events, although the semantic categories expressed by coordinating conjunctions differ from those expressed by adverbializers. Both may use either a balanced or deranked strategy for the form of the predicates expressing the events. Crosslinguistically, one can distinguish two types of deranked predicate forms: converbs (for adverbial subordination) and action nominals. Conjunctions typically originate from discourse markers. Deranked coordination appears to originate in deranked subordination; in some languages, both are expressed identically.

Judicial review is central to the Constitution-in-practice, and in the American system of vertical precedent this necessarily gives the Supreme Court, because it is the final voice in the primary American process of articulating constitutional law, the most important role in solving constitutional problems. It does not follow, however, that all constitutional questions are to be answered by the Supreme Court or that all constitutional answers are the ones that a majority of the justices think are correct in the abstract. The practice of constitutional law involves a web of principles, doctrines, and practices that make the perspective from which one is addressing a question a significant factor, much of the time, in the reasoning the constitutional lawyer should employ.

This chapter considers how we determine the final obligations of a corporation where its actions or policies infringe upon fundamental rights. Since there are competing factors, there is a need to balance different interests. I argue that the proportionality test can be applied successfully to balance the fundamental interests of individuals against the interests of the corporation and thus can provide a structured process of reasoning for determining the final negative obligations of corporations. In making this case, I consider the justification for and challenges to applying the proportionality test to conflicts between non-state actors and individuals with a specific focus upon the corporation. I then consider how each stage of the proportionality analysis – purpose, suitability, necessity and balancing - can apply to corporations and the complexities involved in doing so. In doing so, I will show where each factor – identified in the last chapter - fits into the overall analysis.

In this chapter, Cooley and Nexon argue that instead of operating with a continuum from “revisionist” to “status quo” powers, we should rather focus on the broader strategic environment in which power political maneuvers take place. This is an international goods ecology, comprising types of goods and their distribution. The key advantage of studying power politics as operating within such an asset ecology is how order itself then becomes something different from polarity or hegemony. This makes it possible to distinguish between challenges to the power position of the hegemon and challenges to the architecture of the international order itself. Cooley and Nexon therefore develop an alternate typology of how international orders are challenged to show how acts of substitution are themselves potentially order transforming. They argue that US-led hegemonic order may be undermined before any overt challenge to the power position of the United States emerges. The main benefit of studying the logic of asset substitution is that it gives us a tool to assess how seemingly unimportant acts of substitution, bit by bit and regardless of a lack of revisionist intent, can shape and transform the international order.

Philippine courts do not use a multi-step proportionality test in their constitutional rights analyses. Instead, they use a combination of balancing and tiers-of-rights analyses. We offer two reasons why Philippine courts do not use the proportionality test. First, Philippine courts regard US constitutional law as more persuasive authority than other foreign jurisprudence, and the proportionality test is also absent from the U.S. Reports. Second, Philippine constitutionalism is originalist, and proportionality is not part of the original meaning of the Philippine Constitution. The Philippine Data Privacy Act of 2012 can be interpreted as the legislative empowerment of courts to use the proportionality test for the adjudication of data privacy rights. We argue that Philippine Congress has the power to mandate the use of the test with respect to constitutional rights that are subject to Legislative Delimitation Provisos, which give Congress the power to determine, by statute, the limits or boundaries of certain constitutional rights, including the right to informational privacy. We propose a two-step process in adjudicating informational privacy cases which would retain the judicial use of legal categories while concurrently introducing proportionality stricto sensu. This will offer a structured, transparent approach to the constitutional adjudication of data privacy rights.