Proportionality (2)

Aharon Barak

in The Oxford Handbook of Comparative Constitutional Law

Published in print May 2012 | ISBN: 9780199578610
Published online November 2012 | | DOI:

Series: Oxford Handbooks in Law

Proportionality (2)

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This article focuses on one area governed by proportionality, namely, that of a right grounded in the constitution that is limited by a sub-constitutional norm (such as an ‘ordinary’ statute or common law rule). Such a limitation is constitutional only if it is proportional. It also considers the application of proportionality in those legal systems (such as the United Kingdom, New Zealand, and the Australian state of Victoria) in which there is no constitutional bill of rights and rights are based on a statute that provides, in its limitation clause, that the rights may be limited by law. The article begins by considering the methodological aspect of proportionality as the standard for determining the constitutionality of a sub-constitutional norm that limits a constitutional right. It examines the four elements of proportionality — proper purpose, rational connection, necessity, and proportionality stricto sensu (balancing) — and investigates the formal role of proportionality in limiting a constitutional right. The analytical investigation aims to determine the questions posed by the elements of proportionality, but analytical investigation alone cannot provide the answers to those questions. The answers are to be found primarily in the society's understanding of democracy, separation of powers, and constitutional rights. It is these answers that give proportionality its moral depth.

Keywords: proportionality; sub-constitutional norms; constitutional rights; proper purpose; rational connection

Article.  10714 words. 

Subjects: Law ; Comparative Law ; Constitutional and Administrative Law

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