Proportionality: Constitutional Rights and their Limitations (Cambridge Studies in Constitutional Law)
Cambridge University Press, 1/19/2012
EAN 9781107401198, ISBN10: 1107401194
Paperback, 638 pages, 22.8 x 15.2 x 3.7 cm
Language: English
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.
'Proportionality: Constitutional Rights and their Limitations has positioned Barak among the leading proponents of the received approach to human rights law.' Grégoire Webber, Public Law