Proportionality and Pretense

By Huscroft, Grant | Constitutional Commentary, Spring 2014 | Go to article overview

Proportionality and Pretense


Huscroft, Grant, Constitutional Commentary


PROPORTIONALITY: CONSTITUTIONAL RIGHTS AND THEIR LIMITATIONS. By Aharon Barak. (1) New York, N.Y.: Cambridge University Press. 2012. Pp. xxvi + 611. $55.00 (paper).

 The rule of law requires that state action that limits rights
 be justified in judicial review proceedings.

 Proportionality analysis is the best means of determining
 justification for rights limitations.

 Courts are uniquely well positioned to conduct
 proportionality analysis and should not defer to the other
 branches of government.

 Judicial review is democratic and courts should not be
 concerned about its legitimacy.

Aharon Barak is a staunch proponent of judicial review and these are some of the claims he makes in Proportionality: Constitutional Rights and their Limitations, his contribution to the burgeoning literature on proportionality. Proportionality is an analytical framework used by courts in many countries in determining whether or not limitations on the exercise of rights are justified, and therefore constitutional. Barak's agenda is ambitious: he is, as he describes it, "attempting] to provide a universal understanding of the concept of proportionality in constitutional democracies" (p. 4). According to Barak, proportionality analysis can be used to resolve the most pressing problems a country may face--even threats to the continued existence of the country itself. Can Israel erect a security fence (3) or limit family reunification involving non-Israeli spouses (4) in an attempt to protect its citizens from terrorism? On Barak's account the judiciary can, and must, answer these questions and more without any concerns about the legitimacy of judicial review.

Barak is a jurist of considerable distinction whose legacy is admired by some and abhorred by others. To some he was the exemplary wise jurist who helped protect individual rights and keep state power in check; to others he was an activist judge who usurped democratic power. (5) Views about his legacy differ widely, but there is no doubting his importance. Under his leadership the Supreme Court of Israel established the constitutional stature of Israel's Basic Law: Human Liberty and Dignity (1992), (6) and the decisions he wrote in interpreting and applying the Basic Law have left an indelible stamp on the law of Israel. (7) Now in his retirement, Barak writes for an international audience. Although he acknowledges his predecessors in proportionality scholarship, and in particular the work of Robert Alexy, (8) Barak is keen to demonstrate his differences with them and to promote his own approach to proportionality analysis.

Barak exalts the courts as the ultimate guardians of constitutional rights and downplays the many and profound differences that exist between countries that have adopted bills of rights and proportionality review. (9) The book is a tour of constitutional law, with Barak discussing case law and secondary literature from a wide range of countries including Australia, Canada, Germany, Ireland, Israel, India, New Zealand, South Africa, and the United States, with references to constitutions and statutes from Albania, Moldova, Portugal, Romania, Spain, Switzerland, and Turkey along the way. Few will be familiar with the full breadth of the material cited, so one has to take Barak's account of the law on faith. (10) But there is reason for caution: Barak affects an easy familiarity with matters of great subtlety and nuance in jurisdictions in which he has neither experience nor expertise. (11)

Barak invites readers to draw a familiar conclusion: elected legislators are either insufficiently concerned about rights or are ignorant of them, and are prone to making reactionary judgments in the face of crises real and imagined. Thus, it falls to judges to protect democracy by requiring that governments justify their actions. In Barak's world, legal justification--justification in judicial review proceedings--is all that really matters and there is no room for doubt about its importance. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Proportionality and Pretense
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.