Proportionality - Some unintended consequences: Lessons from Israel

Speaker: Professor Amnon Reichman, University of Haifa.

Proportionality is a cornerstone in public law. The doctrine has been adopted in many western democracies (save for the United States) and has been widely seen as the new Lingua Franca. The structure it provides guides legislatures, executives, and ultimately judges, in determining whether an infringement of protected human rights may nonetheless be justified under the circumstances, and thus tolerated. The doctrine is therefore hailed as providing a coherent way for balancing human rights and paramount public interests (or conflicting human rights). However, as the Israeli case reveals, the doctrine may yield some unintended consequences as well. While thus far criticism has focused on the discretion the doctrine bestows upon judges in assessing the relative strength of the public interest under consideration (including the existence of other, less restrictive means to achieve the governmental goals), the Israeli case demonstrates that the doctrine may also affect other aspects of public law. The presentation will address the effect of the doctrine on the analysis of the legal vires (competence) of administrative agencies, on threshold doctrines such as ripeness, on evidentiary onus and on remedies (in particular, relative voidness).

Professor Amnon Reichman is an associate professor at the faculty of law, University of Haifa. He is the director of the Research Forum for the Study of the Rule of Law, and a member of the Minerva Center for the Study of the Rule of Law Under Extreme Conditions. His main areas of expertise are constitutional law and administrative law (Israeli and comparative), theories of interpretation, regulation, and law and society (including law and culture).