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Eric Allen Engle, THE GENERAL PRINCIPLE OF
PROPORTIONALITY AND ARISTOTLE, 23 IUS Gentium 265 (2013).
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15.1 Introduction
This article
proposes a brief history of the concept of proportionality
in law in order to understand the rule, found around the
world, that state action must be a rational means to a
permissible end which does not invade protected human rights
unless strictly compelled by necessity. Although the concept
of fundamental human rights is a very modern one, dating
from the Scottish enlightenment (circa 1776)
[FN1]
the concept of proportionality, which is used to adjudicate
conflicts between fundamental rights, is much older.
The idea of
distributive justice as proportionality is first seen in
Book V of Aristotle's
Nicomachean Ethics. [FN2]
Proportionality as commutative justice (“an eye for an eye”
lex talionis) is even older and can be traced to the
Code of Hammurabi.
*266 The proportionality principle in law,
though evolving, has shown remarkable continuity over
centuries. The
theory of distributive justice as
geometric proportionality seems to spring forth from
Aristotle's brain like Athena, fully formed and crying
“Victory!”
[FN3] However, the
practice
of proportionality in law, i.e. the implementation of the
general concept in legal practice, occurred over several
centuries. Athena's cry echoes to this day: a law must be a
rational means to a permissible end; the punishment must fit
the crime; the use of force in self-defence must be
necessary, i.e. unavoidable, and limited to only that
violence which is needed to extinguish the threat. The
abstract proportionality concept became more precisely
defined as a rule of law through historical experience.
The general
principle of proportionality is now a world-wide principle
of law
[FN4] found in common law, civil
law (Poto 2007) and international law (Andenas and Zleptnig
2007). The proportionality principle is a key organizing
principle of contemporary legal thought, converging civil
law and common law to a global uniform
ius commune
which hybridizes aspects of common law (binding inductive
case law)
alongside civil law (deductive general
principles of civil law and common law fundamental rights).
This hybridized
ius commune in turn converges
substantive rules of national law toward uniform global
rules. Norm convergence arises due to intensified trade,
vastly improved communication and transit, and machine
translation. Base and superstructure here both reach toward
the same goal, the withering of the state and its
replacement by civil society through peaceful trade to
replace war as the principal mode of state interactions.
Contemporary global law is guided by a teleology of peace
through interdependence and protection of human rights. This
teleology seeks to replace conflict oriented negative and
zero sum state interactions with positive sum private law
interactions. War is to be replaced by law, and law in turn
is to be replaced by voluntary market transactions. Thus,
proportionality as an adjudicative principle which
determines the outcomes of conflicts between fundamental
rights is central to contemporary law. Legal theories are
also converging globally. At the broadest level, conceptual
jurisprudence (
Begriffsjurisprudenz) is linked to
legal process interest balancing (
Interessenjurisprudenz).
Conceptual jurisprudence is then applied to natural law, and
legal process interest balancing is applied to positive law.
Proportionality,
first clearly elucidated by Aristotle, has become the
rational principle which adjudicates conflicts between state
power and fundamental individual rights as well as conflicts
between competing fundamental human rights. Aristotle did
not however analyse law in terms of conflicts involving
fundamental individual or human rights. The idea of
individual fundamental rights as abstract deductive general
principles of law which are hierarchically superior to
ordinary laws only arose with the Scottish enlightenment
circa 1776, which recognized
*267 individuals as having inalienable
fundamental rights. However, the early modern idea of
inalienable rights is linked to the pre-modern idea of
natural right. Natural right is universal because it is an
inevitable consequence of the nature of things. Modernity's
inalienable human rights are also universal, and
universality links them to the pre-modern concept of
international law; antiquity saw international law as those
laws which were true in all countries due to the nature of
things. Modernity's fundamental rights are also natural in
that they are inevitably linked to the attainment of
Aristotle's idea of the good life in political society.
Because fundamental rights are universal and hierarchically
superior to ordinary laws they are deductive general
principles of the law of reason (
Vernunftrecht). The
idea of inalienable individual rights which are inviolable
and hierarchically superior to ordinary laws is clearly an
early modern idea, yet the early modern idea of human rights
is intellectually coherent with pre-modern thought. The
modern idea that inalienable individual rights are
hierarchically superior to ordinary law also coheres with
the idea of antiquity that law is subordinate to justice -
that an unjust law is not law (
lex mala, lex nulla).
As fundamental rights were increasingly recognized, they
also became relativized against each other in late
modernity. Thus, the idea of the just as
recta ratio
and law as
recta ratio naturae congruens, pre-modern
concepts, became applied in late modernity to adjudicate
conflicts between inalienable fundamental human rights, an
early modern concept. Unlike inalienable fundamental human
rights, which inhere by nature and are universal, economic
rights are alienable, positive, and vary with time and
place. Market rights may be bought and sold. Thus, they are
positive and subject to economic analyses (interest
evaluation and balancing) and are hierarchically subordinate
to inalienable human rights.
To understand the
global rise and success as well as the contours of this
general principle of (constitutional) law and how
proportionality serves the constitutionalization and
globalization of law, we examine the history of the concept
and then its legal practice.
15.2 Proportionality in Antiquity
The idea of
justice as proportionality appears first and clearly in
Aristotle's
Nicomachean Ethics Book V, and also Book
III Ch. 10-12. To understand Aristotle's idea of
proportionality in law, and to see how it is the root of
contemporary proportionality analysis, we must first
understand Aristotle's theory of law and justice.
15.2.1 Aristotle's Theory of Law
Aristotle's
rightly distinguishes two types of law: nomos and dike (
EN
V.7).
Nomoi, positive laws, are established by
convention and like all man-made things (
technê - EN
1140 a 1) vary from place to place.
Dike in contrast
is the idea of universal right
*268 which is natural (
physis) - that
which is natural cannot be otherwise (
EN 1139b20-23).
Aristotle saw the co-existence of a universal natural law,
valid in all places and times,
alongside positive
national laws which would hold true in one land, but not in
another (
EN 1134b18-20). Aristotle rightly regarded
what we call positive law (
nomoi) and natural justice
(
dike) as complementary, (
EN V III.4) not
conflicting (
EN V.7).
15.2.2 Aristotle's Theory of Justice
Aristotle
identifies several forms of justice (
EN 1129a27). As
a moral virtue, justice addresses the idea of men who are
just and acts which are just (
EN 1129a31-l 129b7,
1136a25-3, 1135b25, 1135a16, 1133b29-1134al). As a theory of
law, Aristotle distinguishes commutative justice and social
distributive justice (
EN 1131b9-20). Distributive
justice is positive, not natural, and may vary from one land
to another and follows a geometric proportion. Commutative
justice in contrast follows arithmetic proportionality (
EN
1131b32-1132al). Equity, in Aristotle's thinking, acting
ex
aequo et bono, is the means whereby Judges correct
errors which result in applying laws ex post to situations
legislated
ex ante (EN 1137b10-14).
15.2.3 Aristotle's Theory of Proportionality
Proportionately
measures distributive justice (Hanau 2004) in Aristotle's
schema, which appears to be the earliest known historical
source of the contemporary general principle of
proportionality in law (Radbruch 2003, 122, nt.).
[FN5]
Distributive justice addresses public law.
[FN6]
It is conventional: different societies have different
distributive principles.
[FN7]
In Aristotle,
proportionality is justice as the right ratio - the
relationship between a distributive principle and the shares
apportioned thereby. Aristotle's idea has since evolved in
theory and practice to become more precisely defined.
However, the essence of the principle of proportionality in
law is clearly seen in Aristotle's idea of distributive
justice as a rational principle (
recta ratio) which
determines the attribution of rights between State and
citizen as well as the rule of law.
[FN8]
The idea of
*269
proportionality as a specific rule of law
emerged obliquely from Aristotle's thought as an abstract
general principle and became an increasingly concrete and
definite proposition of the law of self-defense in Cicero,
[FN9]
Justinian (Digest 43.16.3.9),
[FN10] Augustine (City of God,
1998, ch. 7),
[FN11] and Aquinas (Sum. Theol.
2a2ae 90-97 esp. 95/3, 96/1).
[FN12]
15.2.4 Other Pre-modern Theorists on
Proportionality
The well-defined
abstract theoretical principle became concretized and
realized by Cicero into positive law (Jolowicz and Nichols
1972, 104-5; Schiller 1978, 374-5; Jackson 1915). Cicero (De
Republica) describes law as the
recta ratio naturae
congruens the right ratio, i.e. the proper proportion.
This concretization (realization) was further refined by
Aquinas in the law of self-defence of states (Sum. Theol.
2a2ae 40). Aquinas then presented the first decomposition of
Aristotle's concept into the now known multi-step
proportionality procedure (Sum. Theol. 2a2ae 90-97). In the
law of self-defence, Aquinas argued that there are
conditions which must exist for the use of force to be just
(necessity); that force, when used, must not be excessive
(proportionality), and that must be exercised by the
sovereign according to rules. Aquinas' theory on
proportional self-defence, in turn, became seen as a general
principle of law by Grotius (War and Peace, 1901, introd.
par. 62).
[FN13] The principle would
apply not just to states in their mutual relations but also
to individuals
*270 in their mutual relations. Grotius
transitions the concept into modernity and links the idea of
justice as proportion (ratio) to the idea of
interest
balancing as a method for dispute resolution. Grotius
unites the ancient concept of justice as ratio, the medieval
concept of proportional self-defence, and the modern concept
of balancing interests.
[FN14] Modern proportionality
thus emerged as a general principle of law. This legal
principle of proportional self defence, first articulated in
the law of nations (also known as
jus gentium -
public international law) was increasingly applied in cases
of self-defence (Totten 2007, nt. 36) not only of states,
but also of the person, and then in national police and then
administrative law: the right to self defence must be
exercised in proportion to the threat; punishments should be
proportional to crimes; the administration must not act
excessively. Rational principle rules - not caprice nor
Diktat;
and it rules with laws - laws which serve justice.
15.3 Proportionality in Early Modern Law
15.3.1 German Law
This
proportionality principle, brought into national law as the
right to proportional individual self defence and the duty
of the state to punish crime only proportionally, became a
heavily litigated aspect of German national administrative
law (Sweet and Mathews 2008). In German law, the principle,
as Wieacker (1979) noted, is rooted in antiquity. The
concept evolved from a prohibition of disproportionality (
Uebermassverbot)
[FN15]
(the state must not act too broadly) toward a more clearly
defined and restrictive principle that the state must use
proportional means to legitimate ends (
Verhaeltnismaessigkeit)
in the post-war era. This became a key principle of German
constitutional law (Baer 1999). The idea is so popular that
it even found expression in
East German law, (Mampel
1982, 731-743) evidence of a broader thesis that Socialist
law is a variant of Western law, albeit organized by the
general principle of
equality rather than the
general principle of
liberty.
15.3.2 Proportionality in Anglo-American Common
Law
Proportionality,
as a general principle of international law likewise found
its way into Anglo-American common law (Gray 1763, 844-847).
Proportionality in common
*271 law is rooted in Magna Charta, which can
be seen as the legal source of the principle of
proportionality in British
[FN16] and U.S. common law.
[FN17]
Thus, the Eighth amendment of the U.S. Constitution permits
only proportional punishments.
[FN18] Just as in German law,
in common law the principle of proportionality found its
earliest expression in the areas of police powers
[FN19]
Despite controversy (Pillai 2002), it is clear that
punishment must be proportional to the crime.
[FN20]
The parallel evolution of the proportionality principle in
German law and common law is likely due to the common
connected conceptual roots of the principle in the thought
of Aristotle, Cicero, Aquinas, and Grotius.
Early modernity
developed two concepts in parallel:
1.
Interest balancing (often seen as political and thus
non-justiciable)
[FN21]
2.
Proportionality (legal and thus justiciable)
Grotius links
interest balancing and proportionality (Ch XXIV). He appears
to be the source of the fusion of interest balancing and the
inquiry into whether law is proportional, i.e. a rational
means to a permissible end. However, interest balancing and
means-end review address two different types of rights:
positive economic rights (interest balancing) and natural
human rights (means-end review). The fusion of these two
ideas does not appear in the works of the pre-modern primary
sources surveyed here.
As we see first in
Grotius, the general principle of proportionality (means-end
review) and economic interest balancing are sometimes joined
together. Their fusion is an error because they address two
different categories of rights and are mathematically
distinct. That which in Europe is referred to as
proportionality analysis is known in
*272
U.S. courts, unequivocally, as means-end
rational review with strict scrutiny for fundamental rights
and suspect classes. Proportionality in Aristotle is
expressed as a geometric ratio (A:B::C:D) which may be
continuous or discontinuous (Aristotle). Interest-balancing,
in contrast, is economic cost/benefit analysis - it is a
simple inequality (A>B). To avoid confusing cost/benefit
analyses of alienable
economic interests with
proportionality analysis of conflicting inalienable
constitutional
rights I advise avoiding the use of the term “balancing”
entirely. Interest analysis is an unequivocal alternative
term for interest balancing (
Interessenjurisprudenz).
It is especially important to avoid confusing interest
balancing and proportionality because early modernity
regarded interests as political and non-justiciable. The
dichotomy of non-justiciable political interests versus
justiciable legal rights subsists to this day in some views
of international law and in the U.S. constitutional
““political question” doctrine.
15.3.3 Proportionality in Contemporary Law (Late
Modernity)
In EU law the
proportionality test (means-end rational review) is very
well worked out. Most recently it was reiterated in
Viking
and
Laval before the ECJ (Case C-438/05). According
to the EU Treaty, an interference with a fundamental right
“is warranted only if [1] it pursues a legitimate objective
compatible with the Treaty [permissible end] and [2] is
justified by overriding reasons of public interest
[necessary means]; if this is the case, it must be [3]
suitable for securing the attainment of the objective which
it pursues [rational means to the legitimate end] and [4]
not go beyond what is necessary in order to attain it”
[least restrictive means; braces supplied by author] (Case
C-341/05). “In simplest terms, the proportionality principle
requires some articulable relationship between means and
ends, specifically that the means chosen by an
administration be suitable or appropriate, and no more
restrictive than necessary to achieve a lawful end. The
principle operates in each of the Member-State's domestic
jurisprudence, though not always in hic verba, and it
qualifies as a peremptory norm of international law.”
(Steinhardt 1994)
As already
mentioned, people sometimes wrongly equate the last step in
proportionality - the scrutiny as to whether the invasion of
the fundamental right is as non-invasive as possible - with
(economic) interest balancing. The proportionality inquiry
goes to the determination of the right relationship between
the means and ends of state action with respect to private
rights in accord with the nature of things - it is expressed
by Cicero's as
recta ratio naturae congruens in De
Republica (Commonwealth). Distributive proportionality does
not concern the evaluation and comparison of costs and
benefits or alienable economic interests. The last step in
proportionality analysis is correctly referred to as
proportionality
strictu sensu (EU) or as “strict
scrutiny” (US), and it applies respectively to fundamental
rights and to “suspect classes”. “Suspect classes” are
discrete and insular politically powerless minorities who
have suffered a history of invidious discrimination.
Proportionality
strictu sensu in the EU is also
called proportionality in the narrower sense. Strict
*273
scrutiny in the US is also called “least
restrictive means analysis”.
[FN22] One divergence in
proportionality analysis is that the EU does not apply
proportionality
strictu sensu to govern
minority/majority relations (suspect classes). It does
however require strict necessity when the state invades a
fundamental right. Regardless of this minor transatlantic
rift, proportionality
strictu sensu (strict
scrutiny) is decidedly
not the balancing of
competing (economic) interests. Proportionality
strictu
sensu is the inquiry into whether state power is
exercised in the least invasive manner possible. Any
divergence between the ideas of strict scrutiny for suspect
classes, least restrictive means analysis, and
proportionality
strictu sensu - which are all rooted
in the same concept, necessity - would be found in the
question of how majorities and minorities relate to each
other. Proportionality
strictu sensu (strict
scrutiny) is not the question of identifying the interested
parties, defining their competing interests, assigning
weights to the interest, and then deciding the issue in
favor of maximizing social wealth - which is the method
known as legal process interest balancing (
Interessenjurisprudenz).
The term
“balancing” in law is used to indicate several different
things, namely:
1.
Commutative justice - after application, the scales of
justice are restored to their
ex ante balance, e.g.,
lex talionis.
2.
Cost-benefit analysis (CBA) - we weigh the costs and
benefits of a policy against the costs and benefits of
another policy and decide for the one that generates the
most social wealth. Cost-benefit analysis is the proper
contemporary use of the term balancing, but that use rightly
applies only to alienable economic rights, not to
inalienable (fundamental, universal, human) rights. CBA is
positive law, not natural justice.
*274
3. Proportionality in the narrower sense
i.e. proportionality
strictu sensu.
The
use of the term “balancing” to indicate proportionality in
any sense should simply be avoided and allowed to fall into
disuse to prevent confusion. ““Proportionality in the
narrower sense”, “proportionality
strictu sensu” or
even “strict scrutiny”.are all more exact terms for the last
step in proportionality analysis and avoid confusing
different concepts by referring to them with the same term.
Multi-factor Interest balancing is the determination of
interested parties, of their competing interests, and their
evaluation against each other: its roots are in the free-law
school (
freie Rechtslehre), a forerunner of critical
legal studies, and its methodology is known as
Interessenjurisprudenz
- interest analysis. Interest balancing is the comparison of
costs and benefits associated with competing interests and
is decided by the principle of social wealth maximization.
Thus, interest balancing logically refers to alienable
economic rights rather than inalienable fundamental human
rights.
15.4 Conclusions
This historical
overview shows that proportionality as a principle of law
arose out of the Aristotelian concept of justice. This
general theoretical fact partly explains the worldwide
success of the concept, since it has deep, global common
roots. After Aristotle, the principle was refined by Cicero,
Aquinas and Grotius and instantiated into law by Justinian,
Magna Charta, the US Constitution, and the Prussian Civil
Code (ALR). Proportionality in law first appeared as a
principle of the law of war, then in national police law and
then administrative law from whence it evolved into a
principle of constitutional law as a tool for the
adjudication of conflicting constitutional rights. The
principle has become a method for the formation of a
transnational
ius commune, a hybrid of common law
(inductive binding case law) and civil law (deductive
general principles). Because the proportionality principle
is one of the most important methods of converging global
norms, future developments of the general principle of
proportionality should seek:
1.
to develop a universally coherent terminology which avoids
confusion. Meansend review with strict scrutiny for suspect
classes and proportionality are methodologically synonymous
and unequivocal. Interest balancing, in contrast, is a much
broader term and is equivocal or at least polysemious.
2.
to clearly delineate the positive law (economic interest
balancing) versus the natural right aspects (means-end
rational review) of proportionality discourse. Economic
interest balancing through cost/benefit analysis and similar
economic tests are inappropriate for adjudication of
fundamental inalienable rights.
Aristotle's
thought about law and justice structures jural relations to
this day.
[FN23] Proportionality, like
causation (
Met. 1.3.11) in tort (Engle 2009) is one
more example
*275
of Aristotle's influence on contemporary
law. True, Aristotle was sexist (
Pol. 1254b
10-15,1259b 2) racist (
Pol. 1252 b 7, 1237 b 23-32)
and homophobic. However, his contributions to justice
through law are the greater and better part of his work.
Aristotle's schema of justice, brilliantly and pithily
exposed in Book V of
The Nicomachen Ethics(*) (see
also
EN III.10-12) holds true to this day (Engle
2008) as seen in concepts such as equity jurisprudence (ex
aequo et bono), proportionality (law as right ratio) and
causation in tort. Aristotle's distinction between
commutative and distributive justice is tenable and useful.
Aristotle serves as a good common universal starting point
for contemporary thought about proportionality. This brief
historical overview provides a synopsis of the history of
proportionality discourse so that contemporary jurists can
continue to develop the rule of law in the most rational way
to serve justice.
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[FN1]. As legal concepts the idea
of inalienable individual rights is first seen in the founding
US constitutional documents such as the US Declaration of
Independence (1776 “all men are created equal; they are
endowed by their creator with certain inalienable rights”) and
the US Constitution. The first modern legal use of the exact
term “human rights” is the French
Déclaration des Droits
de l'Homme of 1789 (lit.:
declaration of the rights
of man).
[FN2]. Aristotle's idea is that
distributive justice can be expressed as ratio, i.e.
proportionality, is one form of justice. As one of my
anonymous peer reviewers rightly pointed out, Aristotle also
discusses justice in the sense of a personal virtue - a
virtuous mean. (
EN 1106b28) Thus, Aristotle's theory of
justice also connects to his theory of moral virtue as the
prudent mean between opposite extremes of vice. (
EN
1107a2) As one of the reviewers noted, adjudication involves
the judicial prudential determination of the mean between the
opposing positions of the plaintiff and defendant.
Adjudication is an act of practical reasoning - Aristotle's
phronêsis. Aristotle's ideas of justice as ratio and virtue as
mean explain the application of the proportionality to
distributive and commutative justice - respectively, social
justice (proportional shares in the constitution of the Polis,
i.e. the State) on the one hand and proportional punishment of
crimes on the other.
[FN3].
Id.
[FN4]. “From German origins,
proportionality analysis spread across Europe, into
Commonwealth systems (Canada, New Zealand, South Africa), and
Israel; it has also migrated to treaty-based regimes,
including the European Union, the European Convention on Human
Rights, and the World Trade Organization” (Sweet 2008).
[FN5].
See also Bydlinski
(1991, 339); Engisch (1971, 162, 222, 229).
[FN6]. Aristotle clearly intends
his concept of distributive justice (the just as ratio, i.e.
proportionality) as governing public-private relations. “Of
particular justice and that which is just in the corresponding
sense, (A) one kind is that which is manifested in
distributions of honour or money or the other things that fall
to be divided among those who have a share in the
constitution”
(EN, Book V Ch. II v. 8 (emphasis added).
[FN7].
EN 1131 a 24-28.
[FN8]. “We do not allow a man to
rule, but rational principle, because a man behaves thus in
his own interests and becomes a tyrant” (
EN V, VI, 5).
[FN9]. “No war can be undertaken
by a just and wise state, unless for faith or self-defence.
This self-defense of the state is enough to ensure its
perpetuity, and this perpetuity is what all patriots desire.
Those afflictions which even the hardiest spirits smart under
poverty, exile, prison, and torment private individuals seek
to escape from by an instantaneous death. But for states, the
greatest calamity of all is that death, which to individuals
appears a refuge. A state should be so constituted as to live
for ever. For a commonwealth, there is no natural dissolution,
as there is for a man, to whom death not only becomes
necessary, but often desirable. And when a state once decays
and falls, it is so utterly revolutionized, that if we may
compare great things with small, it resembles the final wreck
of the universe. All wars, undertaken without a proper motive,
are unjust. And no war can be reputed just, unless it be duly
announced and proclaimed, and if it be not preceded by a
rational demand for restitution.
Our Roman Commonwealth,
by defending its allies, has got possession of the world”
(Treatise on the Commonwealth, trans. Barham 1841-42,
emphasis supplied).
[FN10]. “Those who do damage
because they cannot otherwise defend themselves are blameless
... It is permitted only to use force against an attacker and
even then only so far as is necessary for self-defense.”
[FN11]. Augustine discusses just
war theory but doesn't use the term proportionality (between
force and threat). He does however use the term “just war”.
This seems to be the first use of the signifier “just war”
(certainly one of the earliest).
[FN12].
Also see Aquinas
Sum. Theol. 2a2ae 40.
[FN13]. “The Law of Nations does
not consist, therefore, of a mere body of deductions derived
from general principles of justice, for there is also a body
of doctrine” (trans. Campbell).
[FN14]. Chapter XXIV:
Precautions Against Rashly Engaging in War, Even Upon Just
Grounds. “In all cases of deliberation, not only the ultimate
but the intermediate objects leading to the principal ends are
to be considered. The final object is always some good, or at
least the evasion of some evil, which amounts to the same. The
means are never to be considered by themselves, but only as
they have a tendency to the proposed end. Wherefore in all
cases of deliberation, the proportion, which the means and the
end bear to each other, is to be duly weighed, by comparing
them.”
[FN15]. Remmert(1995).
[FN16]. Hodges v. Humkin (1615).
“By the seventeenth century, England had extended this
principle to punishments that called for incarceration. In one
case, the King's Court ruled that “imprisonment ought always
to be according to the quality of the offence”.
[FN17].
See Note
The
Eighth Amendment, Proportionality, And The Changing Meaning
Of Punishments (2009). “In Solem v. Helm, Justice Powell
traced the history of the Cruel and Unusual Punishments Clause
back to the Magna Carta and the English Bill of Rights of
1689, which he found to have embodied a strong principle of
proportional punishment.”
See also Harmelin v.
Michigan
(1991).
[FN18].
Coker v. Georgia
(1977),
Eberheart v. Georgia (1977). “The Eighth
Amendment requires that every punishment imposed by the
government be commensurate with the offense committed by the
defendant. Punishments that are disproportionately harsh will
be overturned on appeal. Examples of punishments that have
been overturned for being unreasonable are two Georgia
statutes that prescribed the death penalty for rape and
kidnapping”.
[FN19]. U.S. Const, Amdt. VIII.
See also Solem v. Helm (1983),
overruled by
Harmelin v. Michigan (1991). The proportionality of
punishment to crime is, however, differently tested than the
proportionality of means to ends. In Solem, the Court
determined that objective criteria should guide the
proportionality analysis. (
463 U.S. at 292)
The objective criteria considered by the Court were “(i) the
gravity of the offense and the harshness of the penalty; (ii)
the sentences imposed on other criminals in the same
jurisdiction; and (iii) the sentences imposed for commission
of the same crime in other jurisdictions” (
Id.
at 292).
[FN20].
Coker v. Georgia
(1977);
Eberheart v. Georgia (1977) (State death
penalty for rape and kidnapping unconstitutional as
disproportionate).
[FN21].
See the
Federalist
Papers (1961); also Montesquieu's (1914),
Spirit of
the Laws.
[FN22]. Aristotle (
EN
V.3.) “The just, then, is a species of the proportionate
(proportion being not a property only of the kind of number
which consists of abstract units, but of number in general).
For proportion” is equality of ratios; and involves four terms
at least (that discrete proportion involves four terms is
plain, but so does continuous proportion, for it uses one term
as two and mentions it twice; e.g. ‘as the line A is to the
line B, so is the line B to the line C’; the line B, then, has
been mentioned twice, so that if the line B be assumed twice,
the proportional terms will be four); and the just, too,
involves at least four terms, and the ratio between one pair
is the same as that between the other pair; for there is a
similar distinction between the persons and between the
things. As the term A, then, is to B, so will C be to D, and
therefore, alternando, as A is to C, B will be to D. Therefore
also the whole is in the same ratio to the whole; and this
coupling the distribution effects, and, if the terms are so
combined, effects justly. The conjunction, then, of the term A
with C and of B with D is what is just in distribution, and
this species of the just is intermediate, and the unjust is
what violates the proportion; for the proportional is
intermediate,
and the just is proportional. (Mathematicians call this kind
of proportion geometrical; for it is in geometrical proportion
that it follows that the whole is to the whole as either part
is to the corresponding part.) This proportion is not
continuous; for we cannot get a single term standing for a
person and a thing.” (trans. Thomson, emphasis added:
Geometric justice is
distributive it is the even
handed application of a positive general principle to
apportion shares of social goods to the citizens who then may
interchange their goods according to the principles of
commutative, i.e. arithmetic, transactional justice).
[FN23]. One can for example
trace the dichotomies of universal international law /
particular national law, public law / private law and
voluntary obligations (contract) / involuntary obligations
(tort) to Aristotle (See, e.g.
EN 1130 b 30-1131 a 8).