Law & Ethics of Human Rights
Editor-in-Chief: Stopler, Gila
Editorial Board: Benvenisti, Eyal / Cohen-Eliya, Moshe / Macedo, Stephen / Rosenblum, Nancy
CiteScore 2018: 0.19
SCImago Journal Rank (SJR) 2018: 0.118
Source Normalized Impact per Paper (SNIP) 2018: 0.225
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.
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