Law & Ethics of Human Rights

Volume 4, Issue 1

2010

Article 1

R IGHTS , BALANCING & P ROPORTIONALITY

Proportionality and Principled Balancing

Aharon Barak

The Supreme Court of Israel & Radzyner School of Law

c
Copyright 2010
Berkeley Electronic Press. All rights reserved.

Proportionality and Principled Balancing

Aharon Barak

Abstract
This essay focuses on proportionality stricto sensu as a consequential test of balancing. The
basic balancing rule establishes a general criterion for deciding between the marginal benefit to the
public good and the marginal limit to human rights. Based on the Israeli constitutional jurisprudence, this essay supports the adoption of a principled balancing approach that translates the basic
balancing rule into a series of principled balancing tests, taking into account the importance of the
rights and the type of restriction. This approach provides better guidance to the balancer (legislator, administrator, judge), restricts wide discretion in balancing, and makes the act of balancing
more transparent, more structured, and more foreseeable.
The advantages of proportionality stricto sensu with its three levels of abstraction are several.
It stresses the need to always look for a justification of a limit on human rights; it structures the
mind of the balancer; it is transparent; it creates a proper dialog between the political brunches
and the judiciary, and it adds to the objectivity of judicial discretion. Proportionality stricto sensu
however has it critics: some claim that it attempts to balance incommensurable items; others that
balancing is irrational. The answer to the critics is that it is a common base for comparison, namely
the social marginal importance and that the balancing rulesbasic, principled, concretesupply a
rational basis for balancing. A democracy must entrust the judiciarythe unelected independent
judiciaryto be the final decision-makersubject to constitutional amendmentsabout proper
ends that cannot be achieved because they are not proportionality stricto sensu.
KEYWORDS: proportionality, principled balancing approach, balancing rule, principled balancing test

President (Emeritus) the Supreme Court of Israel; Radzyner School of Law, Interdisciplinary
(IDC) Center, Herzliya, Israel.

Human Rights and their Limitations: The Role of Proportionality

INTRODUCTION: HUMAN RIGHTS AND DEMOCRACY

A. HUMAN RIGHTS AND SOCIETY
Human rights are rights of humans as members of society vis--vis others whether
collectively or individually. The concept of a right derives from the concept of
society; without society, rights have no meaning. Implicit in the establishment of
society is the acknowledgement of its authority to prevent its members from acting
solely according to their will or interest. Thus every society must confront the basic
dilemma of determining: which limitations should be placed on an individuals
will or interest? Obviously, totalitarian governments impose limitations that differ
dramatically from those in democratic societies; I, however, concentrate here only
on limitations to democratic societies.
Human rights are central to modern democracy and are built on the ruins of
World War II and the Holocaust. A democracy has no raison detre without human
rights; extracting human rights from a democracy would leave it soulless, an empty
vessel. Human rights are the jewels in democracys crown.
B. LIMITATIONS ON HUMAN RIGHTS
Human rights are not the only considerations to be taken into account in a
democracy and limitations on these rights are unavoidable and of two types: The
rst includes limitations that are necessary to allow others to exercise their own
rights. Democracies can limit rights in order to protect the rights of others,1 a
concept that was expressed rst in France as early as 1789 in the Declaration of the
Rights of Man and the Citizen.2
The second type of limitation includes those limitations that are necessary
for society to achieve its goals.3 Democracies may restrict an individuals rights in
order to: ensure the continued existence of the state, preserve its democratic nature,

See GERHARD VAN DER SCHYFF, LIMITATION OF RIGHTS: A STUDY OF THE EUROPEAN CONVENTION
SOUTH AFRICAN BILL OF RIGHTS 151 (2005). See also Peter Kempees, Legitimate Aims in
the Case-Law of the European Court of Human Rights, in PROTECTING HUMAN RIGHTS: THE EUROPEAN
PERSPECTIVE 659 (Paul Mahoney, Franz Matscher, Herbert Petzold, & Luzius Wildhaber eds.,
2000); SOURCEBOOK ON GERMAN LAW 101 (Raymond Youngs ed., 2002); Jacco Bomhoff, The Rights
and Freedoms of Others: The ECHR and its Peculiar Category of Conicts between Individual
Fundamental Rights, in CONFLICTS BETWEEN FUNDAMENTAL RIGHTS 619, 669 (Eva Brems ed., 2008).
2
See Declaration of the Rights of Man and of the Citizen (1789), reprinted in THE
CONSTITUTION AND OTHER SELECT DOCUMENTS ILLUSTRATIVE OF THE HISTORY OF FRANCE, 1789-1907, at
59-61 (Frank Maloy Anderson ed., 1908); see also supra note 1.
3
VAN DER SCHYFF, supra note 1, at 141, 145, 183, 246.
1

AND THE

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Law & Ethics of Human Rights, Vol. 4 [2010], Iss. 1, Art. 1

maintain public health and order, and provide public education, along with other
national or collective objectives. To achieve those goals, the state may limit human
rights. The special nature of the democratic political systemwhich is based on
cooperation between the society and the individualis thereby realized.
Democracy is based on a proper relationship between the interests of
society and human rights. Both societys interests and human rights are part of
a unied legal structure that determines the scope of human rights and allows for
their limitation.
C. THE PROPER RELATIONSHIP BETWEEN
THE PUBLICS NEEDS AND HUMAN RIGHTS
What is the proper relationship between human rights and societys interests, and
when is the state justied in restricting human rights? There is no universally
accepted answer to this question; rather, responses vary from society to society and
from era to era. Thus, each democracy gives meaning to this relationship according
to its own circumstances, reecting that societys unique challenges, history, and
self-perception. Accordingly, in the wake of the Nazi atrocities and the Holocaust,
post-World War II Germany viewed human dignity as the central component of
its democracy;4 not surprisingly, the primary values in the post-apartheid South
African democracy are equality, human life, and dignity;5 nor is it surprising that
Israel strives for the proper relationship between the publics needs and individual
rights in realizing its values not only as a democratic state but also as a Jewish
one.6
Human rights are a central feature of all democracies, but the degree of their
centrality varies from one democracy to another. As a result, democratic societies
disagree on the proper relationship between human rights and societys interests
and here is where the concept of proportionality comes into play.

I. THE ROLE OF PROPORTIONALITY

A. THE MEANING OF PROPORTIONALITY
Proportionality creates a conceptual framework in which to dene the appropriate
relationship between human rights and considerations that may justify their limitation
See Grundgesetz fr die Bundesrepublik Deutschland (Basic Law) arts. 1(1) & 79(3).
See S. AFR. CONST. 1996 arts. 7 & 36.
6
See Basic Law: Human Dignity and Liberty, art. 1A, 1992, S.H. 150 amended 1994 S.H.
90. An English translation of the law is available at http://www.knesset.gov.il/laws/special/eng/
basic3_eng.htm.
4
5

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Human Rights and their Limitations: The Role of Proportionality

in a democracy. Proportionality is an analytical and methodological doctrine as

well as a legal construction. In and of itself, it does not provide a substantive
solution to the appropriate relationship between human rights and justications for
their limitation. It is neither libertarian nor communitarian, and it is inuenced by
external factors.7 However, with that said, it is not a neutral construction and
aims to protect human rights in a manner compatible to democracy.
The point of departure for understanding proportionality is the basic
distinction between the scope of the right and the limitations imposed on it by
law8 that prevent its full realization.9 Determining the scope of a right requires
its interpretation in a manner that realizes the underlying purpose of the right. I
believe that the scope of the right does not change when it is in conict with other
constitutional valuessuch as societys interests (national security, public order) or
other conicting rights.10 The clash between conicting interests or values should
not be expressed in the scope of the right, but rather in the manner the right is
exercised and realized, and it is in this domain that proportionality plays a central
role.
Proportionality in the broad sense is based on two principle components.11
The rst is legality, which requires that the limitation be prescribed by law; the
second is legitimacy, which is fullled by compliance with the requirements of
proportionality in the regular sense. Its concern is with the conditions that justify
7
Mattias Kumm, Political Liberalism and the Structures of Rights: On the Place and Limits
of the Proportionality Requirement, in LAW, RIGHTS AND DISCOURSE: THE LEGAL PHILOSOPHY OF ROBERT
ALEXY 131, 141 (George Pavlakos ed., 2007). Compare Richard Mullender, Theorizing the Third
Way: Qualied Consequentialism, the Proportionality Principle, and the New Social Democracy,
27 J. L. & SOCY 493 (2000).
8
Law means either statutory law or common law: see VAN DER SCHYFF, supra note 1,
at 136; Sunday Times v. United Kingdom, App. No. 6538/74, 2 Eur. H.R. Rep. 245 (1980); R. v.
Therens, [1985] 1 S.C.R. 613; RWDSU v. Dolphin Delivery Ltd., [1986] 2 83 S.C.R. 573; B.C.G.E.U.
v. British Columbia, [1988] 2 S.C.R. 214; Minister of Transport v. Noort, [1992] 3 NZLR 260;
PAUL RISHWORTH, GRANT HUSCROFT, SCOTT OPTICAN & RICHARD MAHONEY, THE NEW ZEALAND BILL OF
RIGHTS (2003); PETER W. HOGG, CONSTITUTIONAL LAW OF CANADA 122 (5th ed. 2007).
9
Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 VAND.
L. REV. 265 (1981); FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 89 (1982); Stephen
Gardbaum, The New Commonwealth Model of Constitutionalism, 49 AM. J. COMP. L. 707 (2001);
Frederick Schauer, The Exceptional First Amendment, in AMERICAN EXCEPTIONALISM AND HUMAN
RIGHTS 29 (Michael Ignatieff ed., 2005); Stephen Gardbaum, Limiting Constitutional Rights, 54
UCLA L. REV. 789 (2007); Stephen Gardbaum, The Myth and the Reality of American Constitutional
Exceptionalism, 107 MICH. L. REV. 391(2008).
10
See HCJ 7052/03 AdalahThe Legal Center for Arab Minority Rights v. The Minister
of Interior [May 14, 2006] (unpublished) (President Barak), an English translation, available at
http://elyon1.court.gov.il/les_eng/03/520/070/a47/03070520.a47.pdf.
11.
See VAN DER SCHYFF, supra note 1, at 125.

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Law & Ethics of Human Rights, Vol. 4 [2010], Iss. 1, Art. 1

the limitation of a constitutional right by a law. There are two main justicatory
conditions: an appropriate goal and proportionate means. An appropriate goal is a
threshold requirement and in determining it no consideration is given to the means
utilized by the law for attaining the goal. A goal is appropriate even if the means of
attaining it are not.12 The proportionate means must comply with three secondary
criteria:13 (a) a rational connection between the appropriate goal and the means
utilized by the law to attain it; (b) the goal cannot be achieved by means that are
less restrictive of the constitutional right; (c) there must be a proportionate balance
between the social benet of realizing the appropriate goal, and the harm caused to
the right (proportionality stricto sensu or the proportionate effect).
Proportionality therefore fullls a dual function: On the one hand, it allows
the limitation of human rights by law, and on the other hand, it subjects these
limitations to certain conditions; namelythose stemming from proportionality.
Proportionality reects the idea that the constitutional right and its limitations are
ip sides of the same constitutional concept.14 It expresses the idea that human
rights are not absolute, but at the same time it makes it clear that the limitations
themselves have limits. In this essay I focus on the last sub-test of proportionality
proportionality stricto sensu, which I nd the most important. What then are the
basic requirements of this criterion?

12
This approach is controversial see, e.g., 2 PETER HOGG, CONSTITUTIONAL LAW OF CANADA
152 (5th ed. 2007).
13
See, e.g., THE LIMITATION OF HUMAN RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW (Armand
de Mestral et al. ed., 1986); Marc-Andre Eissen, The Principle of Proportionality in the Case-Law of
the European Court of Human Rights, in THE EUROPEAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS
125 (Ronald MacDonald et al. eds., 1993); NICHOLAS EMILIOU, THE PRINCIPLE OF PROPORTIONALITY
IN EUROPEAN LAW (1996); PRINCIPLE OF PROPORTIONALITY IN THE LAWS OF EUROPE (Evalyn Ellis
ed., 1999); JUDITH GARDAM, NECESSITY PROPORTIONALITY AND THE USE OF FORCE BY STATES (2004);
WOJCIECH SADURSKI, RIGHTS BEFORE COURTS: A STUDY OF CONSTITUTIONAL COURTS IN POSTCOMMUNIST
STATES OF CENTRAL AND EASTERN EUROPE (2008); A EUROPE OF RIGHTS: THE IMPACT OF THE ECHR
ON NATIONAL LEGAL SYSTEMS (Helen Keller & Alec Stone Sweet eds., 2008); CONFLICTS BETWEEN
FUNDAMENTAL RIGHTS (Eva Brems ed., 2008). See also VAN DER SCHYFF, supra note 1; ROBERT ALEXY,
A THEORY OF CONSTITUTIONAL RIGHTS (Julian Rivers trans., OUP, 2002) (1985); DAVID BEATTY, THE
ULTIMATE RULE OF LAW 170 (2004); Mattias Kumm, The Jurisprudence of Constitutional Conict:
Constitutional Supremacy in Europe before and after the Constitutional Treaty, 11 EUR. L. J. 262
(2005); Julian Rivers, Proportionality and Variable Intensity of Review, 65 CAMBRIDGE L. J. 174, 200
(2006); CARLOS BERNAL PULIDO, EL PRINCIPIO DE PROPORCIONALIDAD Y LOS DERECHOS FUNDAMENTALES
(2007); Julian Rivers, Proportionality, Discretion and the Second Law of Balancing, in LAW, RIGHTS
AND DISCOURSE: THE LEGAL PHILOSOPHY OF ROBERT ALEXY 167 (George Pavlakos ed., 2007); Mattias
Kumm, What Do You Have In Virtue Of Having A Constitutional Right? On The Place and Limits of
the Proportionality Requirement, in LAW, RIGHTS AND DISCOURSE: THE LEGAL PHILOSOPHY OF ROBERT
ALEXY, supra at 131.
14
See R. v. Oakes, [1986] 1 S.C.R. 103.

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Human Rights and their Limitations: The Role of Proportionality

B. PROPORTIONALITY STRICTO SENSU: BALANCING

Proportionality stricto sensu is a consequential test and requires an appropriate
relationship between the benet gained by the law limiting a human right and the
harm caused to the right by its limitation. The key word here is relationship, and
the requirement is balance between the two.15 Proportionality stricto sensu does
not examine the relationship between the goal of the law and the means adopted
for its achievement; rather, it examines the relationship between the goal of the
law and human rights focusing on the relationship between the benet gained by
the laws realization in comparison to its limit on the rights. It is based on striking
a balance, which creates a solution that reects the principles of society and the
limitations it imposes upon the power to limit the human rights. The balancing
doctrine establishes criteria for realizing this balance within the framework of
proportionality stricto sensu. Yet, how should this balancing be conducted? This is
the key question to be answered by the balancing doctrine.
C. BALANCING BASED ON THE IMPORTANCE OF THE BENEFIT
AND THE IMPORTANCE OF PREVENTING THE LIMITATION
1. RELATIVE SOCIETAL IMPORTANCE
Balancing is a metaphor, which assumes the shape of a scale:16 On one side are the
goals to be achievedon the other the limitations on the right. How can the weight
of each side of the scale be determined? I contend that the criterion is that of the
relative social importance attached to each of the conicting principles or interest
at the point of conict, which assesses the importance to society of the benet

See Stuart Woolman & Henk Botha, Limitations, in CONSTITUTIONAL LAW OF SOUTH
AFRICA ch. 34, at 94 (Stuart Woolman et al. eds., 2006); S. v. Makwanyane 1995 (3) SA 391 (S.
Afr.); Coetzee v. Government of the Republic of South Africa 1995 (4) SA 631, 656 (S. Afr.); R. v.
Oakes, supra note 14; JAMES CASEY, CONSTITUTIONAL LAW IN IRELAND 313 (2000); NICHOLAS EMILIOU,
THE PRINCIPLE OF PROPORTIONALITY IN EUROPEAN LAW 23 (1996); Sporrong and Lnnroth v. Sweden,
App. No. 7151/75, 5 Eur. H.R. Rep. 35, para. 69 (1982).
16
See HCJ 14/86 Laor v. The Israel Film and Theater Council [1987] IsrSC 41(1) 421;
see also Frank Cofn, Judicial Balancing: The Protean Scales of Justice, 63 N.Y.U. L. REV. 16,
19 (1988); Richard Fallon, Individual Rights and the Powers of Government, 27 GA. L. REV. 343
(1993); William Winslade, Adjudication and Balancing Metaphor, in LEGAL REASONING 403 (Hubert
Hubien ed., 1971) (discussing the virtues and disadvantages of the balancing metaphor); Dennis
Curtis & Judith Resnik, Images of Justice, 96 YALE L.J. 1727 (1987); Iddo Porat, The Dual Model
of Balancing: A Model for the Proper Scope of Balancing in Constitutional Law, 27 CARDOZO
L. REV.1393, 1398 (2006); GEORGE LAKOFF & MARK JOHNSON, METAPHORS WE LIVE BY (1980)
(examining metaphoric speech).
15

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Law & Ethics of Human Rights, Vol. 4 [2010], Iss. 1, Art. 1

gained by realization of the laws goal as opposed to the importance to society of

preventing the limitation of human rights.
The key question is how to determine the relative social importance of the
benet in terms of its contribution to society, which is different than the relative
importance of preventing the limitation of the human right in terms of its effect on
the right. This determination is neither scientic nor precise.
Clearly, comparing a benet to a limitation is a daunting task. How can
one compare the benet to state security with the limitation on freedom of speech?
Bearing these difculties in mind, at the very outset it seems appropriate to make
two clarications: First, the comparison is not between the advantages gained by
realizing the goal in contrast to the effect brought by limiting the right. Nor is it
between security and liberty. The comparison is between the marginal benet to
security and the marginal harm to the right caused by the restricting law17 and as
such, the comparison is concerned with the marginal and the incremental.
Second, we must consider the existence of a proportionate alternative
that achieves only part of the goals and only partly limits the right. If indeed, a
proportionate alternative exists, than the comparison between the marginal benet
and the marginal limitation is conducted having consideration for and in comparison
with, the proportionate alternative.18
This dual clarication does not transform the balance into a factual
problem19 and cannot eliminate value judgment in the process of balancing. It
shows, however, that the value-laden question confronted by the decision-maker
(legislator, judge, or executor) is not the balancing, writ large, between general
principles, such as national security or freedom, life or quality of life. Rather,
the decision-maker confronts a balancing, writ small, namely the need to balance
between the marginal advantage to the laws goal (apart from the proportionate
alternative) and the importance of preventing the limits to the right from which it
derives. How is this balance conducted?
2. THE IMPORTANCE OF THE REALIZATION OF THE GOAL
On this side of the scale sits the goal that the law it purports to realize; an appropriate
goal satises threshold requirementsboth in terms of its substance and in terms of
17
See Dieter Grimm, Proportionality in Canadian and German Constitutional
Jurisprudence, 57 U. TORONTO L.J 383, 396 (2007); STEVEN J. HEYMAN, FREE SPEECH AND HUMAN
DIGNITY 70 (2008).
18
See HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel [2004] IsrSC
58(5) 807, an English translation, available at 38 ISR. L. REV. 83 (2005) and http://elyon1.court.gov.
il/les_eng /04 /560/020/A28/04020560.a28.htm (last visited Mar. 2, 2010).
19
Cf. BEATTY, supra note 13, at 170.

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Human Rights and their Limitations: The Role of Proportionality

its urgencyand must belong to the categories recognized (expressly or impliedly)

that justify the limitation of a human right. In this context, different tests have been
adopted in different countries. In Israel, the level of urgency required for realizing a
goal derives from the importance of the human right being limited. When the right
is of great importance, then the criterion for evaluating the urgency of the limitation
is that of a pressing or substantive social interest.20 When the right is less important,
the level of urgency is likewise lower. In order to determine if the importance of the
benet attained by the realization of a said goal justies the limitation of a right, the
examination of the degree of urgency must be supplemented by the examination of
the probability (likelihood) of realizing the goal if the law remains in effect21 and
depends on factual data and a prognosis regarding the possibility of realizing the
appropriate goal.
3. THE IMPORTANCE OF PREVENTING THE LIMITATION OF THE RIGHT
The importance of preventing the marginal limit to the right derives from the
importance of the right itself, the extent of the limitation, and the probability that
the limitation will actually materialize. Are all rights equally important? Do rights
differ in level of importance? The answer to this question is that a distinction
must be drawn between the question of constitutional status and the question
of social weight. The constitutional status of a right is determined according to
the interpretation of the constitution. Absent any constitutional guideline to the
contrary, it can be assumed that all constitutionally anchored rights enjoy identical
constitutional status. But, rights of the same normative level are not necessarily of
the same social importance. The social importance of a rightand by extension its
weight in relation to conicting principlesis derived from its underlying rationale
and its importance within the framework of societys fundamental conceptions.
Comparative law may support the idea that not all constitutional rights are
equally important. The distinction between various rights in terms of their relative
importance provides the central basis for the distinction between the three levels of
scrutiny acceptable in American law. The South African Constitution (1996) states
that the constitutionality of a law that limits constitutional rights is depended inter
alia on the nature of the right under consideration.22 The prevailing approach in

20
HCJ 5016/96 Horev v. The Minister of Transport [1997] IsrSC 51(4) 1, at 197-98, para. 53,
an English translation, available at http://elyon1.court.gov.il/les_eng/96/160/050/A01/96050160.
a01.htm; see also Adalah v .The Minister of Interior, supra note 10, at 81, para. 63.
21
See ALEXY, supra note 13, at 394; Rivers, Proportionality, Discretion and the Second
Law of Balancing, supra note 13.
22
See S. AFR. CONST. 1996 36(1)(a).

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South Africa is that the rights to dignity, equality, liberty, and the derivative rights of
the three, are all of central importance to the South African society.23 However with
that said, comparative lawparticularly German24 and Canadian25 constitutional
lawsuggests a different approach: the assignment of equal importance to all
constitutional rights.
In my view, not all rights are of equal importance. The importance attached
to a right and the importance of preventing its limitation is determined in accordance
with the fundamental conceptions in that society. Both are inuenced by the societys
unique history and particular character, and both are derived from the goals of its
constitution. A right that constitutes a condition for the existence and exercising
of another right should be regarded as being the more important of the two. From
this we can infer the relative importance of the right to life, human dignity, equality,
and political expression, since all are conditions for the realization of many other
rights. But the distinction with respect to the importance of a right is not limited
to the context of comparison between different rights and is likewise applicable
within the context of any given right. Accordingly, within the scope of the right of
freedom of expression, we can distinguish between freedom of political expression
and freedom of commercial expression, with greater importance assigned to the
rst.
The weight that is attached to the side of the rights on the scale is derived
not only from the importance of the right but also from the extent of its limitation,
its intensity, and its dimensions.26 A limitation of only one right differs from the
limitation of additional rights. A limitation nearing the margins of the right differs
from a limitation nearing its core.27 A temporary limitation is less severe than a
permanent one. Thus, consequences of limitation of a human right and its effect on
those entitled to the right affect the weight of the right itself.
Just as the probability of the actual materialization of the appropriate goal
is an important factor in determining its relative weight, so too is the probability of
actual limitation of the right an important factor in determining the weight attached
to the preventing of the limitation. When the probability of the actual limitation
See Woolman & Botha, supra note 15, at 70.
See Grimm, supra note 17, at 395.
25
Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Trinity Western
University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772; Lavoie v. Canada, [2002]
1 S.C.R. 769; R. v. Brown, [2002] 2 S.C.R. 185; Chamberlain v. Surrey School District No. 36.
[2002] 4 S.C.R. 710; Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698; Gosselin (Tutor of) v.
Quebec (Attorney General), [2005] 1 S.C.R. 238; WIC Radio Ltd. V. Simpson, [2008] S.C.J. 41.
26
See Beit Sourik Village Council v. The Government of Israel, supra note 18, at 850, para.
40; Adalah v .The Minister of Interior, supra note 10, at 93-95, para. 74.
27
Horev v. The Minister of Transportation, supra note 20, at para. 32.
23
24

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Human Rights and their Limitations: The Role of Proportionality

of the right is high, the weight attached to preventing the limitation itself is greater
than in those instances in which the probability of an actual limitation is slight.
This aspect of the limitation of the right has not been sufciently addressed in
the legal literature, because in most of cases the actual limitation of the right is
certain, when the infringing law is adopted, the right is immediately limited. This is
indeed true for most of cases, but not always. In cases in which it is uncertain that
the right will be limited, then the degree of uncertaintyi.e., the likelihood of its
materializationwill have an effect on the weight attached to the right affected.
D. THE BALANCE
1. THE BASIC BALANCING RULE
Bearing the aforementioned in mind, the basic balancing rule can be expressed
as follows:28 To the extent that greater importance is attached to preventing the
marginal limit to a human right and to the extent that the probability of the right
being limited is higher, the marginal benet to the public interest brought about by
the limitation must be of greater importance, of greater urgency, and possessing a
greater probability of materializing.
2. THE CONCRETE (AD HOC) BALANCING RULE
The basic balancing rule establishes a general criterion for deciding between
the marginal benet to the public good and the marginal limit to human rights.
Following this rule there is always a concrete balancing, which is sensitive to the
circumstances of the case.29 This is ad hoc balancing. The basic balancing rule
paints using a broad brush stroke the general terms of balancing.30 Contrastingly,
the concrete balancing rule requires balancing in the specic circumstances of each
case. While, the basic balancing rule is founded upon rough generalization and a
high level of abstraction, concrete balance is based on low abstraction and takes
into account the circumstances in each instance.

This rule was inuenced substantially by Prof. Alexys Law and Balancing (ALEXY,
supra note 13, at 102).
29
See Philip Sales & Ben Hooper, Proportionality and the Form of Law, 119 L. Q. REV.
426 (2003).
30
A classic example a basic balancing rule is the Law of Balancing, formulated by Robert
Alexy: The greater the degree of non-satisfaction of, or detriment to, one principle, the greater the
importance of satisfying the other. See ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS 102
(2002).
28

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3. THE PRINCIPLED BALANCE

One the one hand, the transition from a high level of abstraction to particular
circumstances of the case at hand is sharp and acute and is undesirable, and in that
sense the basic balancing rule is too abstract. It fails to recognize the particular
features that characterize various human rights, whether as an object for limitation or
an object for protection. It does not focus on the basic principles underlying various
human rights, providing the justication for protecting them or for limiting them;
and it fails to highlight considerations that characterize the appropriate protection of
the right. On the other hand, the concrete balancing rule is too particularized. This
quandary prompts the creation of an intermediate level: between basic balancing and
concrete balancing. Should there be a principled balance that translates the basic
balancing rule into a number of principled balancing rules formulated at a lower
level of abstraction than the basic balancing rule and at a higher level than that of
the concrete balancing rule? This level of abstraction would express considerations
of the principle at the basis of the right and the justication for its limitation. How
would one formulate this intermediate level? What differentiates it from concrete
balancing, and what is its justication?
The principled balancing rule would translate the basic balancing rule into
a principled formula that relates to the limited right on the one hand and the goal of
the limiting law on the other hand. It would establish the conditions to be satised
by the limiting law so that the limitation of the right would meet the requirements
of proportionality stricto sensu and would reect normative considerations that
justify marginal limitation to a human right in order to enable the marginal benet
to the public good. Evaluation of the limited right would give expression to the
importance of the right, the extent of the limitation, its intensity, dimension, and
probability. The evaluation of the goal side of the scale should take into account
the importance of the goal in view of its content, the urgency of its realization
reected in the harm that would be caused absent the restriction, and the probability
of that harm.
Let us discuss for example, a law that limits the right of political expression
a right of great importance. Assume that the goal of the limitation is protection of
public peace in face of hate speech. The principled balancing rule might determine
that it is only permissible to limit freedom of political speech when the goal of
protecting public peace from the consequences of hate speech is crucially important
for the realization of an urgent social need that is required to prevent extensive and
immediate harm to public peace. The principled balancing rule is thus characterized
by a level of abstraction that gives expression to the reasons underlying the right
and the justications for its limitation.
There are many different human rights, each having its own particular
aspects. Similarly, there are many considerations pertaining to the public good,
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Human Rights and their Limitations: The Role of Proportionality

each of them with its own particular features. This dictates the need for a number
of rules for establishing a principled balance and a number of balancing rules that
give expression to a kaleidoscope of considerations regarding both the limited right
and the goal underlying its limitation. For example, freedom of political expression
differs from freedom of commercial expression. An a priori restriction is not the
same as a post factum restriction. A minor limitation is not the same as a major
limitation.
The number of principled balancing formulae is far in excess of the number
of human rights. Each human right has a variety of principled balancing rules
that reect its importance, the scale of the limitation in the event of the realization
of a goal that limits it, and the likelihood of the right actually being limited. The
principled balancing rule will similarly give expression to the importance of the
goal that limits a human right, to the urgency of its realization, to the effect on the
public good in the event the goal is not realized, to the probability of actual damage
to the public good if the goal is not realized, and to the probability of an actual
benet to the public good if the right is limited.
An examination of comparative law shows that very few legal systems have
formulated principled balancing formulae. The question is then why? Possibly
this may reect an approach shared by many of the legal systems, whereby all
constitutional rights are assumed to be of equal importance.31 Accordingly, the
only element to be examined would be whether the limitation of the right is of
light, moderate, or serious signicance.32 In accordance with the answer to that
question there would be an examination of the degree of importance attaching to
the realization of the goal. Arguably, the equivalence in the importance attached
to limiting all rights prevents a normative abstraction from extending beyond
the boundaries of that specic case. While consideration is always paid to the
importance of realizing the goal, it would seem that legal systems have had
difculty in recognizing principled balancing rules in which one component of the
balancingthat of the limitation of the rightdoes not rise above the concrete
case. Prof. Alexy expressed this idea in the following words: abstract weights
only have an inuence on the outcome of balancing if they are different. If they
are equal, which in the case of competing constitutional rights is often the case,
the only relevant factor is their concrete importance.33 Be it as it may, I think that
the principled balanceas a derivative of the basic balancing rule, is desirable.
It guides the balancer (legislator, administrator, judge), restricts wide discretion
See STEVEN GREER, THE EUROPEAN CONVENTION OF HUMAN RIGHTS: ACHIEVEMENTS, PROBLEMS
PROSPECTS 218 (2006).
32
See ALEXY, supra note 13, at 405.
33
Id. at 406.
31

AND

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in balancing, and makes the act of balancing more transparent, structured, and
foreseeable. This kind of balance differs from the principled balance endorsed in
the U.S.34 According to my approach the principled balance is based on a balance
struck within the framework of a right of a given scope. In the U.S., the principled
balance determines the parameters of the scope of the right; it does not operate
within those parameters.

II. CRITICISM AND REPLY

Proportionality is central to the doctrine of rights. Just as we are currently living in
an era of rights,35 we are also living in an era of proportionality. Most constitutional
democracies have adopted proportionality as a central criterion for resolving
problems posed by the complex relations between the individual and society in
modern democracies36 and is a good example of the migration of constitutional
laws.37 Proportionality is based on the concept of balance. Its role is not to
determine the scope of the right but rather the justication for its protection or its
limitation.
The advantages of proportionality stricto sensu with three levels of abstraction
are several: It stresses the need to always justify limitation on human rights;38 it

34
See Melville B. Nimmer, The Right To Speak from Times to Time: First Amendment
Theory Applied to Libel and Misapplied to Privacy, 56 CAL. L. REV. 935 (1968).
35
See LOUIS HENKIN, THE AGE OF RIGHTS (1990); NORBERTO BOBBIO, THE AGE OF RIGHTS
(1995); CHARLES EPP, THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS, AND SUPREME COURTS IN
COMPARATIVE PERSPECTIVE (1998); Lorraine Weinrib, The Supreme Court of Canada in the Age
of Rights: Constitutional Democracy, the Rule of Law and Fundamental Rights under Canadas
Constitution, 80 CAN. BAR REV. 699 (2001).
36
See Alec Stone Sweet & Jud Mathews, Proportionality, Balancing and Global
Constitutionalism, 47 COLUM. J. TRANSNATL L. 73 (2009); see also A EUROPE OF RIGHTS: THE IMPACT
OF THE ECHR ON NATIONAL LEGAL SYSTEMS, supra note 13.
37
See THE MIGRATION OF CONSTITUTIONAL IDEAS (Sujit Choudhry ed., 2007).
38
See Jeremy Kirk, Constitutional Guarantees, Characterisation and the Concept of
Proportionality, 21 MELB. U. L. REV. 1, 20 (1997); JEFFREY M. SHAMAN, CONSTITUTIONAL INTERPRETATION:
ILLUSION AND REALITY 44 (2001); Mattias Kumm, Political Liberalism and the Structures of Rights:
On the Place and Limits of the Proportionality Requirement, in LAW, RIGHTS AND DISCOURSE: THE
LEGAL PHILOSOPHY OF ROBERT ALEXY 131 (George Pavlakos ed., 2007); Vicki Jackson, CONSTITUTIONAL
ENGAGEMENT IN A TRANSNATIONAL ERA 63 (2010); Etienne Mureinik, A Bridge to Where? Introducing
the Interim Bill of Rights, 10 S. AFR. J. HUM. RTS. 31, 32 (1994); David Dyzenhaus, Law as
Justication: Etienne Mureiniks Conception of Legal Culture, 14 S. AFR. J. HUM. RTS. 11, 27 (1998);
Andrew Butler, Limiting Rights, 33 VICTORIA U. WELLINGTON L. REV. 113, 116 (2002); Jeffrey Jowell,
Judicial Deference and Human Rights: A Question of Competence, in LAW AND ADMINISTRATION IN
EUROPE: ESSAYS IN HONOUR OF CAROL HARLOW 67, 69 (Paul P. Craig & Richard Rawlings eds., 2003);
Michael Taggart, Proportionality, Deference, Wednesbury, JUDICIAL REV. 23, 48 (2007).

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Human Rights and their Limitations: The Role of Proportionality

structures the mind of the balancer;39 it is transparent;40 it creates a proper dialog

between the political brunches and the judiciary;41 and it adds to the objectivity of
judicial discretion.
Proportionality stricto sensu has critics. Some claim that it attempts to
balance incommensurable items.42 My answer is that a common base for comparison
39
See BEATTY, supra note 13, at 172; Julian Rivers, Proportionality and Variable Intensity
of Review, 65 CAMBRIDGE L. J. 174, 176 (2006); Lorraine Weinrib, The Postwar Paradigm and
American Exceptionalism, in THE MIGRATION OF CONSTITUTIONAL IDEAS 84, 96 (Sujit Choudhry ed.,
2006); PAUL CRAIG, ADMINISTRATIVE LAW 637 (6th ed. 2008).
40
Frank Michelman, Foreword: Traces of Self-Government, 100 HARV. L. REV. 4, 34 (1986);
Jeremy Kirk, Constitutional Guarantees, Characterisation and the Concept of Proportionality,
21 MELB. U. L. REV. 1, 20 (1997); MICHAEL SACHS, GG VERFASUNGSRECHT II GRUNDRECHTE 71
(2003); Vicki C. Jackson, Being Proportional about Proportionality, 21 CONST. COMMENT 803,
830 (2004) (reviewing David M. Beatty, The Ultimate Rule of Law (2004)); Cofn, supra note
16, at 25; Thomas Poole, Tilting at Windmills? Truth and Illusion in the Political Constitution, 70
MOD. L. REV. 250, 268 (2007); Wojciech Sadurski, Reasonableness and Value Pluralism in Law
and Politics, in REASONABLENESS AND LAW 129 (Giorgio Bongiovanni, Sartor Giovanni, & Chiara
Valentini eds., 2009). For criticism on that approach, see Vicki C. Jackson, Ambivalent Resistance
and Comparative Constitutionalism: Opening up the Conversation on Proportionality, Rights and
Federalism, 1 U. PA. J. CONST. L. 583, 621 (1999).
41
On the dialog metaphor, see AHARON BARAK, THE JUDGE IN A DEMOCRACY 376 (2004);
Frank I. Michelman, Foreword: Traces of Self-GovernmentThe Supreme Court 1985 Term, 100
HARV. L. REV. 4 (1986); Peter W. Hogg & Allison A. Bushell, The Charter Dialogue between
Courts and Legislatures (Or Perhaps the Charter of Rights Isnt Such a Bad Thing After All), 35
OSGOODE HALL L. J. 75 (1997); Christopher P. Manfredi & James B. Kelly, Six Degrees of Dialogue:
A Response to Hogg and Bushell, 37 OSGOODE HALL L. J. 513 (1999); Peter W. Hogg & Allison A.
Bushell, Reply to Six Degrees of Dialogue, 37 OSGOODE HALL L. J. 529 (1999); KENT ROACH, THE
SUPREME COURT ON TRIAL: JUDICIAL ACTIVISM OR DEMOCRATIC DIALOGUE (2001); Carissima Mathen,
Constitutional Dialogue in Canada and the United States, 14 NATL J. CONST. L. 403 (2003); Richard
Clayton, Judicial Deference and Democratic Dialogue: The Legitimacy of Judicial Intervention
under the Human Rights Act 1998, PUB. L. 33 (2004); Tom Hickman, Constitutional Dialogue,
Constitutional Theories and the Human Rights Act 1998, PUB. L. 306 (2005); Kent Roach, Dialogue
or Deance: Legislative Reversals of Supreme Court Decisions in Canada and the United States,
4 INTL J. CONS. L. 347 (2006); Christopher P. Manfredi, The Day the Dialogue Died: A Comment
on Sauv v. Canada, 45 OSGOODE HALL L. J. 105 (2007); Julie Debeljak, Parliamentary Sovereignty
and Dialogue Under the Victorian Charter of Human Rights and Responsibilities: Drawing the Line
Between Judicial Interpretation and Judicial Law-Making, 33 MONASH U. L. REV. 9 (2007); MARK
TUSHNET, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS IN COMPARATIVE
CONSTITUTIONAL LAW 31 (2008).
42
Laurent B. Frantz, Is the First Amendment Law?A Reply to Professor Mendelson, 51
CAL. L. REV. 729 (1963); LORENZO ZUCCA, CONSTITUTIONAL DILEMMAS: CONFLICTS OF FUNDAMENTAL
LEGAL RIGHTS IN EUROPE AND THE USA 85 (2007); Louis Henkin, Infallibility under Law: Constitutional
Balancing, 78 COLUM. L. REV. 1022 (1978); T. Alexander Aleinikoff, Constitutional Law in the Age
of Balancing, 96 YALE L.J. 943, 972 (1987); GRGOIRE WEBBER, THE NEGOTIABLE CONSTITUTION: ON
THE LIMITATION OF RIGHTS 89 (2009).

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exists, namely the social marginal importance. Others assert that balancing
is irrational.43 I assert, and have tried to show, that the balancing rulesbasic,
principled, concretesupply a rational basis for balancing.
Other critics charge that proportionality stricto sensu protects rights even less
than its alternatives, such as the American categorization.44 I dont agree. In critical
cases of strict scrutiny, when there is no possibility to prevent over-inclusiveness,
proportionality stricto sensu may protect basic rights more than strict scrutiny.45
But what about the considerations pertaining to the relations between the
political branches (legislative and executive) and the judicial branch? I present a
balancing model that is applicable to anyone who conducts balancing. Accordingly,
my position regarding proportionality would remain intact even in the total absence
of judicial review. It would be of course applicable within the framework of judicial
review under the Human Rights Act, 1998.46 An examination of the proportionality
doctrine shows that the relative extent of discretion exercised by the legislator
or administrator and the judge will vary in accordance with the components of
proportionality. When deciding whether to act, legislative or administrator discretion
is extremely broad and judicial discretion is extremely limited. When determining
the goals, the means, and the prognosis of their effect, the legislator or administrator
has broad discretion, whereas judicial discretion is narrow. However, to the extent
that we delve deeper into the analysis of the sub-tests of proportionality, the scope
of legislative or administrator discretion decreases. Upon reaching proportionality
stricto sensu, and achieving the balance, judicial discretion is broad and legislative
discretion is narrow. I made this point in one of the cases that discusses the
construction of the separation fence.
The military commander is the expert regarding the military quality of the
separation fence route. We are experts regarding its humanitarian aspects.
The military commander determines where, on hill and plain, the separation
43
JRGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF
LAW AND DEMOCRACY 259 (trans. William Rehg, Polity Press, 1996) (1992). See also BODO PIEROTH
& BERNARD SCHLINK, GRUNDRECHTE, STAATSRECHT II, 66 (2006). For analysis of this argument
and its answers see CARLOS BERNAL PUILIDO, EL PRINCIPIO DE PROPORCIONALIDAD Y LOS DERECHOS
FUNDAMENTALES 163 (2007).
44
Melville B. Nimmer, The Right to Speak from Times to Time: First Amendment Theory
Applied to Libel and Misapplied to Privacy, 56 CAL. L. REV. 935 (1968); Gerald Gunther, In Search
of Judicial Quality on a Changing Court: The Case of Justice Powell, 24 STAN. L. REV. 1001, 1005
(1972). See also Patrick M. McFadden, The Balancing Test, 29 B.C. L. REV. 585, 636 (1988);
GRGOIRE C.N. WEBBER, THE NEGOTIABLE CONSTITUTION: ON THE LIMITATION OF RIGHTS 89 (2009).
45
Richard H. Fallon, Individual Rights and the Powers of Government, 27 GA. L. REV. 343,
362 (1993).
46
Human Rights Act, 1998, c. 42.

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Human Rights and their Limitations: The Role of Proportionality

fence will be erected. This is his expertise. We examine whether this routes
harm to the local residents is proportionate. This is our expertise.47
It is my view that in a democracy, the judiciarythe unelected independent
judiciaryshould be entrusted to be the nal decision-makersubject to
constitutional amendmentsabout proper ends that cannot be achieved because
they are not proportional stricto sensu. There are certain limits of proportionality
stricto sensu that the political branches are forbidden to cross. A case in example
is Adalah v. The Minister of Interior, in which the Israeli Supreme Court ruled that
a statute that prohibits family unication between Israeli Arab citizens and their
non-Israeli spouses from the West Bank because of the security risk associated with
non-Israeli spouses, which caused in the past more than twenty terrorist attacks, is
unconstitutional since it disproportionally limits the right to dignity. In my judgment
I wrote:
Examination of the test of proportionality (in the narrow sense) returns us
to rst principles that are the foundation of our constitutional democracy
and the human rights that are enjoyed by Israelis. These principles are that
the end does not justify the means; the security is not above all else; that the
proper purpose of increasing security does not justify serious harm to the
lives of many thousands of Israeli citizens. Our democracy is characterized
by the fact that it imposes limits on the ability to violate human rights; that
it is based on the recognition that surrounding the individual there is a wall
protecting his rights, which cannot be breached even by the majority.48
Many may disagree with me on that crucial point. To these critics, my only
answer is: I am aware of your criticism, but I have not found a better system. It is
my view that if we take human rights seriously we should accept proportionality
stricto sensu and judicial discretion in balancing. Let me conclude by citing a
judgment in which the Court ruled that the government has no authority to authorize
torture.
We are aware that this judgment of ours does not make confronting that
reality any easier. That is the fate of democracy, in whose eyes not all means
are permitted, and to whom not all the methods used by her enemies are
open. At times democracy ghts with one hand tied behind her back. Despite
that, democracy has the upper hand, since preserving the rule of law and
recognition of individual liberties constitute an important component of her

47
48

Beit Sourik Village Council v. The Government of Israel, supra note 18, at 846.
Adalah v. The Minister of Interior, supra note 10, at 109-10, para. 93.

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security stance. At the end of the day, they strengthen her and her spirit, and
allow her to overcome her difculties.49

HCJ 5100/94 The Public Committee against Torture in Israel v. The State of Israel [1999]
IsrSC 53(4) 817, 845, para. 39.
48

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