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Proportionality

Proportionality: Constitutional Rights and Their Limitations

Proportionality Constitutional Rights and Their Limitations

Author: Aharon Barak
Publisher: Cambridge University Press
ISBN: 9781107401198
Published In: January 2012
Format: Paperback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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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.

Contents:: 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.

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