Did the Lawmaker Shoot a Cannon to Hit a Fly? On Proportionality in Law

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This article is a book review of former President Aharon Barak’s work on proportionality in law — The Infringement of the Constitutional Right and Its Limitations. The article begins with a survey of the objectives Barak seeks to advance in his book and the different methods through which he pursues these objectives, followed by a concise overview of the book’s central ideas.

It then presents a critique of the book, highlighting how it aligns with Barak’s foundational constitutional philosophy regarding the centrality of judges as the arbiters of society’s fundamental values. The article examines the way the book sheds light on Barak’s current perspective on the constitutional revolution. It explains Barak’s innovations in interpreting section 4 of Basic Law: The Knesset, whereby he abandons the Bergman precedent and its progeny in favor of the era of Bank Mizrahi and its progeny.

The article argues that, contrary to Barak’s assertions, the allocation of powers in the application of proportionality doctrines results in the concentration of power in the hands of the judiciary. It also analyzes the practical difficulties the Court is likely to encounter when attempting to apply the proportionality doctrines as designed by Barak.

Finally, the article examines the numerous implicit agendas Barak sets for us with regard to the future: beginning with the question of what is the central test for invalidating legislation; continuing with questions relating to the duty to legislate, the potential erosion of the “limitation clause” that protects preexisting laws, and the like; and concluding with issues such as the creation of a hierarchy among constitutional rights.

Suggested citation:

Did the Lawmaker Shoot a Cannon to Hit a Fly? On Proportionality in Law, 15 Law & Business (Reichman U L Rev) 337 , 337-415 (2012) [Hebrew]