Proportionality in Private Law

Edited by Franz Bauer and Ben Köhler

[Verhältnismäßigkeit im Privatrecht.]

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ISBN 978-3-16-162293-9
Open Access: CC BY-SA 4.0
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Published in English.
Proportionality is not exclusively a public law concept but also plays an important role in various private law contexts. The present volume explores different manifestations of proportionality reasoning in private law across different jurisdictions and combines theoretical, constitutional, and comparative perspectives.
Proportionality is a ubiquitous concept in law. While mostly associated with fundamental rights review, it also plays an important role in private law. In this context, proportionality requirements can be the result of both traditional private law reasoning and the influence of constitutional law. The present volume aims to explore different forms and functions of proportionality in selected private law contexts and jurisdictions. The contributions cover constitutional and theoretical underpinnings of proportionality's role in private law as well as specific examples of how proportionality affects private law in different areas and across different jurisdictions. They include perspectives on German and US-American private, procedural, and constitutional law as well as a special focus on the European dimension.
Survey of contents
Ben Köhler: Proportionality in Private Law: A Primer – Franz Bauer: Proportionality in Private Law: An Analytical Framework – Victor Jouannaud: The Various Manifestations of the Constitutional Principle of Proportionality in Private Law – Philip M. Bender: Private Law Adjudication versus Constitutional Adjudication – Proportionality between Coherence and Balancing – Nicolás Parra-Herrera: Three Approaches to Proportionality in American Legal Thought: A Genealogy – Johanna Stark: Rights and Their Boundaries in European Contract Law: Abuse, Proportionality, or Both? – Luc Desaunettes-Barbero: Proportionality and IP Law – Toward an Age of Balancing? – Sorina Doroga: The Use of Public Policy Clauses for the Protection of Human Rights in the EU and the Role of Proportionality – Wiebke Voß: Proportionality in Civil Procedure: A Different Animal? – Guy Rubinstein: The Influence of Proportionality in Private Law on Remedies in American Constitutional Criminal Procedure

Franz Bauer is a Research Associate at the Max Planck Institute for Comparative and International Private Law, Hamburg.

Ben Köhler ist Wissenschaftlicher Referent am Max-Planck-Institut für ausländisches und internationales Privatrecht, Hamburg.


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