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. …