The need for a constitutional entrenchment

Any legal system wishing to adopt proportionality as a criterion for properly limiting constitutional rights through sub-constitutional law must provide a legal foundation for such an adoption. It is insufficient to merely recognize proportionality as a key concept or to simply acknowledge its superiority over other limiting criteria. It would also be insufficient for the common law to recognize it, or even for statutory provisions to do so. Rather, the only legal basis for the application of proportionality as a criterion for the limitation of constitutional rights by sub-constitutional law must be found in the constitution itself, either explicitly or implicitly. Indeed, in order to properly limit a constitutional right by a sub-constitutional law, the law establishing the limitation must rest on a constitutional foundation. What constitutes the constitutional basis of proportionality?

In Israel, the answer to this question appears straightforward. The Israeli Basic Laws contain, within their general limitation clauses, a specific provision stating that any limitation of the constitutional rights established therein must be by law “benefiting the values of the State of Israel, enacted for a proper purpose.” In addition, the limitation clauses must be “to an extent no greater than required.” A similar provision may be found in several other constitutions. Take, for example, an amendment to the Austrian Constitution from 1988. While subsection (1) of the amended provision establishes a constitutional right to freedom, subsection (3) provides:

Similarly, the new Federal Constitution of Switzerland (2000) contains a general limitation clause (Article 36(3)), which includes the following specific language:

Another explicit provision relating to proportionality is found in Romania’s Constitution (1991) and in an amendment (2001) to the Constitution of the Republic of Turkey. Some other constitutions have included within their limitation clauses (either general or specific) special provisions requiring that a limitation of a constitutional right be done in a manner that is “necessary” in a democratic society. From the use of this term – “necessary” – the courts have deduced the proportionality requirement.