Introduction

Summary

This book reflects the constitutional theory developed following the Second World War. It reflects an expansion of the concept of constitutional law, a blurring of the lines between constitutional and private law as well as the development of purposive interpretation. This modern constitutional theory also recognizes positive constitutional rights alongside the negative ones, and stipulates a wider judicial review on the law’s constitutionality. It is based on the fundamental distinction between recognizing the scope of the constitutional rights and their limitations. Two key elements in developing this modern constitutional theory are the notions of democracy and the rule of law. The concept of proportionality stems from these two notions. This book seeks to analyze that concept.

Proportionality has different meanings in various contexts. This book focuses on one meaning in particular – the proportionality of a limitation applied within a democratic system, on a constitutional right by a law (a statute or the common law). For that, we must assume the very existence of such constitutional rights and their legal origin (either explicitly or implicitly) in a constitutional text. The book examines the situations in which a law may limit such a right in a constitutionally recognized manner. The limitations that may be imposed on a constitutional right will be analyzed, as well as the limits of these limitations.