How proportional is proportionality?

Ariel L. Bendor, Tal Sela

Research output: Contribution to journalArticlepeer-review

11 Scopus citations

Abstract

Proportionality is a set of rules determining the conditions for a limitation of constitutionally protected rights. It is the mainstay of the protection of constitutional human rights in many Western democracies and worldwide. Aharon Barak's Proportionality is probably the most important and comprehensive book written on the subject to date. The essay presents several key arguments concerning the weaknesses of proportionality in the model proposed and developed by Barak, and shows how Barak's rejection of various arguments against proportionality is not fully convincing. The essay suggests that the benefits of Barak's structuring of proportionality are more modest than Barak maintains; points out the weaknesses of Barak's approach in regard to the interpretation of constitutional rights, which entails a trivialization of the rights and has problematic consequences for the interpretation and application of proportionality as well as undesirable symbolic connotations; and asserts that Barak's approach increases the problem of incommensurability, which is inherent in the doctrine of proportionality. The essay claims that despite the importance of the book it does not provide a satisfactory answer to many difficult and complex problems regarding proportionality.

Original languageEnglish
Pages (from-to)530-544
Number of pages15
JournalInternational Journal of Constitutional Law
Volume13
Issue number2
DOIs
StatePublished - 1 Apr 2015

Bibliographical note

Publisher Copyright:
© The Author 2015.

Fingerprint

Dive into the research topics of 'How proportional is proportionality?'. Together they form a unique fingerprint.

Cite this