Proportionality

Speaker: Aharon Barak, President of the Supreme Court of Israel (Emeritus)

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 rules—basic, principled, concrete—supply a rational basis for balancing. A democracy must entrust the judiciary—the unelected independent judiciary—to be the final decision-maker—subject to constitutional amendments—about proper ends that cannot be achieved because they are not proportionality stricto sensu.

Aharon Barak, born in Lithuania in 1936, is married and the father of four. He studied law, economics and international relations at the Hebrew University in Jerusalem. Barak received an MA in law in 1958, and a doctorate in 1963. He was appointed Associate Professor of Law at the Hebrew University in 1968 and became Dean of that Faculty in 1974. From 1975-8, he occupied the position of Attorney General of Israel, an appointed and independent position in the Ministry of Justice overseeing the justice system. He was appointed to the Supreme Court of Israel in 1978 and became its President in 1995. His retirement from the Court took place in September 2006 when he reached the age of mandatory retirement. He has received a number of prizes and honours, including the Kaplan Prize for excellence in science and research and the Israel Prize in legal sciences as well as numerous honorary degrees. He is the author of a number of books in Hebrew and in English as well as numerous articles on a wide variety of legal topics. His publications in English include Judicial Discretion, Purposive Interpretation in Law and The Judge in a Democracy, from Princeton University Press.

A light lunch will be served.

For more workshop information, please contact Professor Lorraine Weinrib at l.weinrib@utoronto.ca or Nadia Gulezko at n.gulezko@utoronto.ca.

2010