Proportionality And Constitutional Culture

A comparison of proportionality, the dominant doctrine in constitutional law worldwide, with the American doctrine of balancing.

This book presents important new scholarship by leading figures in constitutional law on new challenges for proportionality doctrine.

A strong counter-argument to the universalising discourse on proportionality and global constitutionalism.

Leading constitutional theorists debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning.

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.

This book uses empirical analysis to show that courts refrain from using the proportionality test as a means of judicial activism.

A rigorous analysis of the relationship between proportionality and deference under the Human Rights Act.

A comparative and empirical analysis of proportionality in the case law of six constitutional and supreme courts.