Proportionality

Constitutional Rights and their Limitations

Aharon Barak

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Hardback

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English

Cambridge University Press
19 January 2012

Law; Jurisprudence & general issues; Constitutional & administrative law

Series: Cambridge Studies in 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.

By: Aharon Barak
Imprint: Cambridge University Press
Country of Publication: United Kingdom
Volume: 2
Dimensions: Height: 229mm, Width: 152mm, Spine: 35mm
Weight: 1.020kg
ISBN: 9781107008588
ISBN 10: 1107008581
Series: Cambridge Studies in Constitutional Law
Pages: 638
Publication Date: 19 January 2012
Audience: Professional and scholarly , Undergraduate
Format: Hardback
Publisher's Status: Active

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.

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.

Reviews for Proportionality: Constitutional Rights and their Limitations

'Proportionality: Constitutional Rights and their Limitations has positioned Barak among the leading proponents of the received approach to human rights law.' Gregoire Webber, Public Law '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