Having identified proportionality as the main tool for limiting constitutional rights, Aharon Barak explores its four components (proper purpose, rational connection, necessity and proportionality stricto sensu) and discusses the relationships between proportionality and reasonableness and between courts and legislation. He goes on to analyse the concept of deference and to consider the main arguments against the use of proportionality (incommensurability and irrationality). Alternatives to proportionality are compared and future developments of proportionality are suggested.
About the Author
Aharon Barak is a faculty member at the Interdisciplinary Center (IDC) Herzliya, Israel, and a visiting professor at Yale Law School. In 1975 he was appointed Attorney General of the State of Israel, becoming Justice of the Supreme Court of Israel in 1978 and serving as President from 1995 until his retirement in 2006. He has also served as a lecturer, professor and Dean of the Law School at the Hebrew University of Jerusalem.
Table of ContentsPart I. Constitutional Rights: Scope and Limitations: 1. Constitutional rights: scope and the extent of its protection; 2. Determining the scope of constitutional rights; 3. Conflicting constitutional rights; 4. Limitation of constitutional rights; 5. Limiting constitutional rights by law; Part II. Proportionality: Sources, Nature, Function: 6. The nature and function of proportionality; 7. The historical origins of proportionality; 8. The legal sources of proportionality; Part III. The Components of Proportionality: 9. Proper purpose; 10. Rational connection; 11. Necessity; 12. Proportionality stricto sensu (balancing); 13. Proportionality and reasonableness; 14. Zone of proportionality: legislator and judge; 15. Proportionality and positive constitutional rights; 16. The burden of proof; Part IV. Proportionality Evaluated: 17. Proportionality's importance; 18. The criticism on proportionality and a retort; 19. Alternatives to proportionality; 20. The future of proportionality.