Justice Barak, Former President of Israeli Supreme Court, Addresses Human Rights and the Law

Defends the Legal Doctrine of "Proportionality"

New York, September 27, 2012—The former Chief Justice of the Israeli Supreme Court promoted proportionality as a key tool for shielding human rights during a lecture at Columbia Law School on September 24.

Described as “one of the leading lawyers and jurists of his generation,” by David M. Schizer, Dean and the Lucy G. Moses Professor of Law; Harvey R. Miller Professor of Law and Economics, Justice Aharon Barak, a Holocaust survivor from Lithuania, served as a professor at Hebrew University and Israel’s Attorney General before joining the nation’s highest court for 28 years. He was invited to speak at Columbia Law School by Zohar Goshen, the Alfred W. Bressler Professor of Law and director of the Center for Israeli Legal Studies.

“Human rights are central to modern democracy,” Barak opened. “Extracting human rights from a democracy would leave it soulless.” Despite this importance, he went on, democracies must at times impose limitations on such rights to advance a nation’s public policy goals—such as national security. Or in protecting the rights of one person, the state might have to impose limitations on the rights of fellow citizens.”

“What is the proper relationship between human rights and public goals?” Barak asked. “There is no universal answer to this question.” It is largely dependent on the culture and history of each nation. In post-WWII Germany, for instance, human dignity became a central element of the law as a response to the Holocaust and Nazi crimes. Likewise, the concepts of human life, equality, and freedom loomed large in post-Apartheid South Africa.”

Proportionality serves as a valuable tool in striking a balance between human rights and these critical, yet contradictory goals, Barak explained. The concept is not based on a “liberal or communitarian” ideology. Instead, “it is an analytical and methodological doctrine.” In essence, proportionality serves as a tool for legislators and jurists in weighing a law’s validity.

Though little used in the United States, the concept originated in nineteenth century Germany before reemerging in post-WWII Europe, Israel, South Africa, New Zealand, and elsewhere, Justice Barak said.

As a leading proponent of proportionality, he provided a four-step process for applying the doctrine to real-world scenarios.

First, a law limiting a human or constitutional right must have a proper purpose, such as serving the public’s interest.

Second, the law must have a rationale connection—that is, the means adopted by the law must be capable of realizing its purpose.

Third, a lawmaker or judge assessing the validity of a law should determine whether the law’s purpose can be attained through less intrusive means. If she can find a less restrictive yet equally effective way to meet the law’s purpose, then the law in question should be invalidated.

Finally, if a law survives these three steps, a judge must then apply a balancing test. This is the key element of the proportionality doctrine. At this stage, a judge must weigh the “marginal benefit” to the nation arising from the law against the “marginal damage” caused to constitutional or human rights by that law.

Barak spent the latter end of his lecture defending proportionality, a doctrine he has come to champion as a professor and jurist. Applying this doctrine gives a judge discretion—perhaps too much discretion at the expense of elected bodies, according to critics. But judges are equally—if not—better suited to apply this doctrine in protecting human rights, Barak declared in defending a robust role for the courts in a democratic society.

“The Court’s role is to protect democracy and the Constitution. If we don’t protect democracy, then it will not protect us.”