Proportional Effect: The Israeli Experience
I The Right and the Limitation
At the foundation of any discussion of human rights lies a basic differentiation between two separate questions.1 The first question is, What is the scope of the right? That question examines those entitled to the right and those obligated by it; the acts permissible and forbidden; and the application of the right in place and time. Where two or more rights clash, the question of the relationship between them arises. The second question relates to the limitation upon the scope of the right by non-constitutional norms (regular statutes or common law). That question examines the realization of the right in 'regular' law and the extent of protection granted it. The answer to the first question is found in the constitutional language that (explicitly or implicitly) entrenches the right. The answer to the second question is found in the constitutional scheme that allows limitation of or infringement upon the right. Constitutional interpretation is used in answering both questions.2 This article focuses on the second question.
The possibility of limiting behaviour that falls within the scope of a constitutional right is entrenched in limitation clauses.3 Limitation clauses are central to the understanding of constitutional democracy [End Page 369] and of judicial review of the constitutionality of statutes.4 They are an expression of the democratic values of society. Limitation clauses can be explicit or implicit, general or particular. In Canada, they are entrenched in art. 1 of the Canadian Charter of Rights and Freedoms, which determines that
[t]he Canadian Charter of Rights and Freedoms guarantees the Rights and Freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.5
A similar provision appears in Israel's Basic Law: Human Dignity and Freedom:
There shall be no violation of freedom of occupation except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required, or by regulation enacted by virtue of express authorisation in such law.6
The similarity between the two provisions is great. It is not coincidental: the Israeli legislature was familiar with the Canadian limitation clause and was influenced by it.
Both provisions – the Canadian and the Israeli – have been interpreted by the courts as including the principle of proportionality.7 The content that has been derived from this principle is similar in both legal systems. The Supreme Court of Israel has been influenced on this matter by the Supreme Court of Canada. I assume – without knowing – that the Supreme Court of Canada was influenced by the case law of the Supreme Court of Germany, or by the European Court of Human Rights, which, in turn, was influenced by German law. Otherwise, it is difficult to explain the great similarity between the conditions of proportionality in the three legal systems.8 [End Page 370]
II The Conditions of Proportionality: Proper Objects and Proper Means
Proportionality examines the relationship between the object and the means for realizing it. Both the object and the means must be proper. The relationship between them is an integral part of the proportionality test. Despite the centrality of the object component, no statute in Israel has been annulled merely because of the lack of a proper object. A similar approach exists in German constitutional law.9 In practice, the main importance of the object has been in examining the means for realizing it; the main role of the object has been as a mechanism for examining the constitutionality of the means. That is regrettable. The object component should be given an independent and central role in examining constitutionality, without linking it solely with the means for realizing it. Indeed, not every object is proper from the constitutional perspective. This is not an expression of a lack of...
