Is Proportionality an Effective Protector of Human Rights? Proportionality and Constitutional Culture by Moshe Cohen-Eliya, Iddo Porat--a Critique

Abstract

The book is an important contribution to the understanding of proportionality and balancing and their cultural roots, as well as to comparative research, mainly between the United States and Germany. The book provides important insights concerning these two legal cultures. The book highlights the fruition of an international, almost universal, language of proportionality and the emergence of a club of torch-bearers of this concept—the judges. The book shows how this language and the above-mentioned club serve and promote a culture of justification. However, as the purpose of evaluation is not only to praise but also to criticize, I will focus first on some methodological remarks and then turn to few substantive comments. From a methodological point of view it is not entirely clear who are the players—objects of the research—the United States v. Germany, the United States v. Europe or the United States v. the rest of the world, including Common Law countries1 and also Asian countries like India and Latin America countries. It is doubtful whether this is not an over-generalization. India, for instance, is devoted to reasonableness and its use of proportionality is recent, thin, and unclear.