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Proportionality
Constitutional Rights and their Limitations

$146.00 (P)

Part of Cambridge Studies in Constitutional Law

  • Author: Aharon Barak, Radzyner School of Law, Interdisciplinary Center Herzliya
  • Date Published: March 2012
  • availability: Available
  • format: Hardback
  • isbn: 9781107008588

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About the Authors
  • 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.

    • Theory of proportionality in limiting constitutional rights will interest scholars, students and judges
    • Demonstrates the application of the theory by using judgments from many legal systems
    • Written from the perspective of a judge who applies the theory in practice
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    Reviews & endorsements

    "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

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    Product details

    • Date Published: March 2012
    • format: Hardback
    • isbn: 9781107008588
    • length: 638 pages
    • dimensions: 229 x 152 x 35 mm
    • weight: 1.02kg
    • contains: 1 b/w illus.
    • availability: Available
  • Table of 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.

  • Instructors have used or reviewed this title for the following courses

    • Civil Rights Seminar
    • Con. Law Selected Issues
  • Author

    Aharon Barak, Radzyner School of Law, Interdisciplinary Center Herzliya
    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.

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