Proportionality: Comparative Perspectives on Israeli Debates

Israeli Constitutional Law in the Making (Hart Publishing, 2013) 255-266

10 Pages Posted: 13 Sep 2017

See all articles by Sujit Choudhry

Sujit Choudhry

Center for Constitutional Transitions; Center for Global Constitutionalism, WZB Berlin Social Science Center

Date Written: 2013

Abstract

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?

Suggested Citation

Choudhry, Sujit, Proportionality: Comparative Perspectives on Israeli Debates (2013). Israeli Constitutional Law in the Making (Hart Publishing, 2013) 255-266. Available at SSRN: https://ssrn.com/abstract=3025988

Sujit Choudhry (Contact Author)

Center for Constitutional Transitions ( email )

HOME PAGE: constitutionaltransitions.org

Center for Global Constitutionalism, WZB Berlin Social Science Center ( email )

Reichpietschufer 50
D-10785 Berlin, 10785
Germany

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