Proportionality
Constitutional Rights and their Limitations

Aharon Barak analyses the scope of constitutional rights, the conflicts between them and the limitations imposed on them by law.

Aharon Barak (Author)

9781107401198, Cambridge University Press

Paperback / softback, published 19 January 2012

638 pages, 1 b/w illus.
22.4 x 15 x 3.3 cm, 0.98 kg

'Barak's Proportionality is probably the most important and comprehensive book written on the subject to date.' Ariel L. Bendor and Tal Sela, International Journal of Constitutional Law

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.

Part 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.

Subject Areas: Constitutional & administrative law [LND], Jurisprudence & general issues [LA], Law [L]