The word means ‘something that cannot be compared or measured, especially a quality or a mathematical value’.  Section 27 of the Employment Equity Act (EEA) obliges employers to eliminate ‘disproportionate income differentials’ in their enterprises. The EEA also requires equal remuneration/pay for work of equal value.  The concept of proportionality is included in the regulations and the code.  But what does it mean?  We know that a pay differential of up to 100% in one occupational level can still comply with the requirement of equality.  Why does section 27 of the EEA refer to ‘income’ and then the word ‘remuneration’ is used elsewhere?  How are legal practitioners and labour court judges going to get to grips with all these concepts?  Fortunately a book has been written on the subject and has now been reviewed.

The article is by Ariel L, Bendor and Tal Sela: How proportional is proportionality? Int J Constitutional Law (2015) 13(2): 530-544 published by Oxford University Press and New York University School of Law [subscription required].  Aharon Barak’s book:  Proportionality.  Constitutional Rights and their Limitations.  Cambridge University Press, 2012.  Pp.  611.  $64.99.  ISBN: 9781107401198.

Abstract of the article

Proportionality is a set of rules determining the conditions for a limitation of constitutionally protected rights.  It is the mainstay of the protection of constitutional human rights in many Western democracies and worldwide.  Aharon Barak’s Proportionality is probably the most important and comprehensive book written on the subject to date. 

The essay presents several key arguments concerning the weaknesses of proportionality in the model proposed and developed by Barak, and shows how Barak’s rejection of various arguments against proportionality is not fully convincing.  The essay suggests that

  • the benefits of Barak’s structuring of proportionality are more modest than Barak maintains;
  • points out the weaknesses of Barak’s approach in regard to the interpretation of constitutional rights, which entails a trivialization of the rights and has problematic consequences for the interpretation and application of proportionality as well as undesirable symbolic connotations; and
  • asserts that Barak’s approach increases the problem of incommensurability (something that cannot be compared or measured, especially a quality or a mathematical value), which is inherent in the doctrine of proportionality.

The essay claims that despite the importance of the book it does not provide a satisfactory answer to many difficult and complex problems regarding proportionality.