Abstract

DIEZ GARGARI, Rodrigo. Proportionality analysis, clash of principles, and the new discourse of The Mexican Supreme Court. Cuest. Const. [online]. 2012, n.26, pp.69-106. ISSN 1405-9193.

In the context of New Constitutionalism, Proportionality Analysis (PA) has become the dominant adjudicative tool to solve modern day juridical problems. PA has proven to be a useful analytical tool especially because of its flexibility and its ability to increase the transparency of judicial decisions. Nevertheless, it has also generated an image of a neutral adjudicative method that clouds the fact that judges are engaging in substantial value as well as creating Law. An example of this situation can be found in some recent cases ruled by the Mexican Supreme Court (the "Court"). This paper analyzes how is it that the Court has used PA and its implications to Mexico's constitutional life.

Keywords : Proportionality Analysis; balancing; constitutional tribunals; principles and rules.

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