Administrative / Constitutional Law

Proportionality Constitutional Rights and Their Limitations

By Aharon Barak
Cambridge University Press January 2012

Specifications

ISBN-13
9781107401198
Publisher
Cambridge University Press
Publication
January 2012
Format
Paperback
Jurisdiction
U.K. ? Countri(es) for reference only

Details

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.

Table of Contents

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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