Proportional Effect: The Israeli Experience

Abstract

At the foundation of any discussion of human rights lies a basic differentiation between two separate questions. 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. This article focuses on the second question.