Proportionality: Comparative Perspectives on Israeli Debates

“Proportionality: Comparative Perspectives on Israeli Debates” in G. Sapir, D. Barak-Erez & A. Barak, eds., Israeli Constitutional Law in the Making (Hart Publishing, 2013) 255-266.

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Proportionality is a pervasive feature of contemporary constitutional practice under most systems of rights-protection. Although its textual underpinnings are diverse, this diversity in constitutional forms has been overwhelmed by the emergence of a doctrine of proportionality with a common legal structure. After decades of doctrinal development marked by self-conscious and deliberate constitutional convergence, we are now witnessing the rise of a scholarly literature on proportionality that is genuinely comparative, and which is trying to catch up with constitutional practice. Its centre of gravity is proportionality in the strict sense. This may reflect the fact that it is at this stage where the bulk of legal analysis tends to take place in the jurisdictions that command central academic attention, notably Israel and Germany (and now perhaps even Canada). Yet another set of debates concerns whether proportionality undercuts the very idea of rights themselves. By contrast, the question of legitimate objectives has suffered from relative neglect in the literature. This chapter examines three questions with respect to legitimate objectives: 1. What purposes are illegitimate, and hence terminate the limitations analysis before one proceeds to proportionality? 2. Can we reinterpret those elements of proportionality that describe themselves as not concerned with the scrutiny of ends and which take those ends as givens—suitability necessity—as tools to uncover illegitimate purposes? When the state acts in response to the demands of some private parties to restrict the rights of other private parties, how should a court characterise the purposes underlying its actions?