THE HISTORY OF THE GENERAL PRINCIPLE OF PROPORTIONALITY: AN OVERVIEW
ERIC ENGLE**
Could we get over all our difficulties respecting a balance of interests.1
This article examines the history of the general principle of proportionality in law from Aristotle to present. The general principle of proportionality (means end rational review with strict scrutiny for suspect classes) holds that state action must be a rational means to a permissible end that does not unduly invade fundamental human rights. The proportionality principle originated in Aristotle's theory that the just is a ratio (proportion) between two parties, mediated by an abstract principle. The general principle of proportionality represents a key aspect of contemporary legal thought which unites both positive and natural law. The proportionality principle is one of the main vectors which drives convergence of common law and civil law into a globalized jus commune, a hybrid of inductive binding case law and deductive general principles which converges substantive rules of national laws toward uniform global rules. To avoid confusion, use of the term "balancing" to describe proportionality analysis should be avoided because retributive balancing (lex talionis) is not distributive, but is commutative, and because economic interest balancing looks to financial costs and benefits of alienable property rights rather than to the resolution of normative conflicts between inalienable fundamental human rights. Proportionality, economic cost benefit analysis, and lex talionis are three distinct interpretive methods that should not be confused.
I. INTRODUCTION.......................................................................................... |
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II. PROPORTIONALITY IN ANTIQUITY............................................................ |
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III. PROPORTIONALITY IN MODERNITY ......................................................... |
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A. German Law................................................................................... |
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B. Common Law................................................................................. |
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C. Contemporary Law......................................................................... |
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IV. CONCLUSION ......................................................................................... |
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I. |
INTRODUCTION |
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This article proposes a brief history of the concept of proportionality in law in order to understand the worldwide appearance of
** Lehrbeauftragter (adjunct), Humboldt Universität Berlin, Faculty of Law. JD St. Louis, DEA Paris II, Mention, LL.M. Dr.Jur. Bremen, Germany. This research was funded by Harvard Law School. The author wishes to thank Harvard for its support. Buten un Binnen – wagen un winnen.
1 John Dickinson, “Empire and Nation: Letters from a Farmer in Pennsylvania” in Richard Henry
Lee (ed. Forrest McDonald), Letters from the Federal Farmer (Indianapolis: Liberty Fund 1999).
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the legal rule that state action must be a rational means to a permissible end, which does not unduly invade fundamental human rights. I argue that the concept of proportionality, though evolving in and through law, has shown remarkable continuity over several centuries, even millennia. The theory of proportionality appears to have arisen rapidly, almost spontaneously, in Aristotle's thought, springing like Athena fully armed from the brain, crying victory.2 However, the practice of proportionality jurisprudence, the practical legal implementation of the general concept, occurred over several centuries as a historical evolution, refining and modifying Aristotle's original theory along the way. Aristotle's idea – that the just is a ratio between two parties mediated by an abstract principle – is still a part of contemporary law as shown by the general principle of proportionality. However, Aristotle’s abstract general concept became more precisely defined through legal practice.
The general principle of proportionality (means
end rational review with strict scrutiny for suspect classes)
represents a key aspect of contemporary legal thought. It is the
methodological capstone of the current
2Aristotle, Nicomachean Ethics, Book V.
3See id.
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Today the general principle of proportionality is a worldwide principle of law.4 It is found in both the common law and civil law before national5 and transnational courts alike.6 It is a key organizing principle of contemporary legal thought,7 and is the example par excellence of the depth of convergence of civil law and common law to a global uniform jus commune, which hybridizes aspects of common law (binding case law) alongside civil law (deductive general principles of law, into which common law fundamental rights are imported/subsumed). Theories are also converging: At the broadest level, conceptual jurisprudence (Begriffsjurisprudenz) fuses with legal process interest balancing (Interessenjurisprudenz). Conceptual jurisprudence is then applied to positive law, and legal process interest balancing is applied to natural law. 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 of law, we examine the history of the concept.
II.PROPORTIONALITY IN ANTIQUITY
The idea of justice as proportionality appears first and clearly in Aristotle's Nicomachean Ethics, Book V.8 Proportionately measures distributive justice9 in Aristotle's schema. This appears to be the earliest
4Alec
Stone Sweet & Jud Mathews, Proportionality
Balancing And Global Constitutionalism, 47 COLUM. J. TRANSNAT'L L. 72, 96 (2008).
“From German origins, proportionality analysis spread across
Europe into Commonwealth systems (Canada, New Zealand, South
Africa) and Israel; it has also migrated to
Convention on Human Rights, and the World Trade Organization.”
5Margherita Poto, The Principle Of Proportionality in Comparative Perspective, 8 GERMAN L.J.
835(2007).
6Mads Andenas & Stefan Zleptnig, Proportionality: WTO Law in Comparative Perspective, 42 TEX. INT'L L.J. 371, 372 (2007).
7Sweet, supra note 4, at 72. “Over the past fifty years, proportionality balancing – an analytical procedure akin to ‘strict scrutiny’ in the United States – has become a dominant technique of rights adjudication in the world.”
8See
also, Aristotle, The
Nicomachean Ethics: Book III, Ch.
9Hans Hanau, Der Grundsatz der Verhältnismässigkeit als Schranke privater Gestaltungsmacht: Zu Herleitung und Struktur einer Angemessenheitskontrolle von Verfassungswegen (2004).
“Proportionality as an element of Legal
Concept [Rechtsidee; lit. idea of
right]1. Iustitia distributiva as an
ultimate form of justice. Distributive justice. The ancient [Ur] form of justice goes back to
Aristotle, and later was called by the commentators distributive
justice. The goal of distributive justice is the relative
relational equality in the treatment of different persons in
measure to a
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known historical source of the contemporary general principle of proportionality in law.10 Tracing the concept forward from Aristotle leads to the conclusion that while the principle has evolved and become more refined, more precise, we are still essentially looking at Aristotle's concept: the right relationship (recta ratio; Verhalten) between the state and the citizen, adjudicated by the rule of law.11
In Aristotle, the proportionality inquiry goes
to justice as the right ratio – the relationship between a
distributive principle and the shares apportioned thereby. The
idea of proportionality as a specific rule of law emerged
obliquely from Aristotle's thought as a vague and general but
increasingly concrete and definite proposition of the law of
measure of the demands of distributive justice
only when the (at least four) elements are taken into account by
the judgment (i.e., A will perform C and B will perform D) in a
determined (according to Aristotle) geometric proportion. If,
for example, money should be distributed according to the
different needs of the addresses of rights, the different
degrees of necessity of A and B must correspond to the different
levels of the distributed contribution (the
10Ralf Dreier & Stanley L. Paulson, Gustav Radbruch: Rechtsphilosophie, Studienausgabe, 122, Footnotes (Heidelberg: C. F. Müller, 2d ed. 2003); See also, Bydlinksi, Juristische Methodenlehre und Rechtsbegriff 339; Engisch, Auf der Suche nach Gerechtigkeit 162, 222, 229.
11Aristotle, supra note 8. “We do not allow a man to rule, but rational principle, because a man behaves thus in his own interests and becomes a tyrant.”
12Marcus
Tullius Cicero, Treatise on the
Commonwealth in Francis Barham, Esq., The Political Works of Marcus Tullius Cicero:
Comprising his Treatise on the Commonwealth; and his Treatise
on the Laws, translated from the original, with
Dissertations and Notes in Two Volumes, Vol. 1 (London: Edmund
Spettigue,
13Digest
of Justinian 43.16.3.9, 291 (Alan Watson ed. 1985).
“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
14See Augustine, The City of God, chapter 7, http://www.newadvent.org/fathers/120119.htm. 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 it is one of the earliest).
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theoretical principle became concretized and realized by Cicero in the positive law.16 Cicero describes law as the recta ratio naturae congruens17
— meaning the right ratio, the proper
proportion. This concretization (realization) was further
refined by Aquinas in the law of
Modern proportionality thus emerged as a
general principle of law. This legal principle of proportional
15Thomas
Aquinas, Summa Theologica, Treatise on Law
97esp. 95/3, 96/1 (Hereinafter ST), http://www.ccel.org/a/aquinas/summa/FS.html.
16H.F.
Jolowicz & Barry Nichols, A Historical
Introduction to the Study of Roman Law
17Cicero, De Republica (Commonwealth).
18Thomas Aquinas, Summa Theologica, Second Part of the Second Part Q. 40 (Benziger Bros. ed. 1947), http://www.ccel.org/a/aquinas/summa/SS.html.
19Aquinas,
supra note 15, at Questions
20Hugo
Grotius, The Rights of War and Peace, including the
Law of Nature and of Nations, translated from
the Original Latin of Grotius, with Notes and Illustrations
from Political and Legal Writers, by A.C. Campbell, A.M. with
an Introduction by David J. Hill, Introduction, § 62 (1901).,
http://oll.libertyfund.org/title/553/90737/2052898
on
21Id. at Chapter XXIV: Precautions Against Rashly Engaging in War, Even Upon Just Grounds.
“V. 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.”
22Mark Totten, Using Force First: Moral Tradition and the Case for Revision, 43 STAN. J. INT'L
L. 95, n. 36 (2007). “This principle appears
in his discussion of individual
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the person, and then in national police and
then administrative law. As such, the right to
III.PROPORTIONALITY IN MODERNITY
A.German Law
This now domesticated principle became a
heavily litigated aspect of German domestic administrative law.23 In German law, the principle, as
Wieacker noted,24 is rooted in
antiquity. The concept evolved from a prohibition of
disproportionality (Uebermassverbot)25 (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
23Sweet,
supra note 4 at 72,
24Wiacker, Festschrift für Robert Fischer (1979).
25Barbara Remmert, Verfassungs und Verwaltungsrechtsgeschichtliche Grundlagen des Uebermassverbotes (1995).
26See
Susanne Baer, Equality: The
Jurisprudence of the German Constitutional Court, 5 COLUM. J. EUR. L. 249,
27Siegfried Mampel, Die Sozialistische Verfassung der Deutschen Demokratischen Republik 731-
743(1982).
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law is a variant of Western law, albeit organized by the general principle of equality rather than the general principle of liberty.
B. Common Law
Proportionality, as a general principle of international law, found its way into the common law as well, especially in British history.28 Its earliest form in common law can be found in the Magna Charta.29 The Magna Charta is the legal source of the principle of proportionality in British30 and U.S. common law.31 Thus, the Eighth amendment of the U.S. Constitution commands proportional punishments.32 Just as in German law, in common law the principle of proportionality found its earliest expression in the areas of police powers33 – punishment must be proportional to the crime34 – because the principle grew out of the idea of proportional self- defense and thus had particular application in police law,35 though not without controversy as to its exact form.36
28Anchitell Gray, Debates of the House of Commons, from the Year 1667 to the Year 1694 844-
847(1763).
29Magna
Charta,
30Hodges v. Humkin, 2 Bulst. 139, 80 Eng. Rep. 1015 (K.B. 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".
31See The Eighth Amendment, Proportionality, and the Changing Meaning Of Punishments, 122 HARV. L. REV. 960, 960 (2009). "In Solem v. Helm, [FN1] 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, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991). (Eighth Amendment: punishment must be proportional to crime). "In Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991), the Supreme Court also pointed to the Magna Charta as an early source of its Eighth Amendment proportionality analysis. Chapter 20 of the Great Charter prohibited the monarch from imposing a fine "unless according to the measure of the offense." It further provided that "for a great offense [a free man] shall be [punished] according to the greatness of the offense." Under the Eighth Amendment to the Constitution, the Supreme Court has echoed this principle by prohibiting state and federal governments from imposing fines and other forms of punishment that are disproportionate to the seriousness of the offense for which the defendant was convicted."
32Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977); Eberheart v. Georgia, 433 U.S. 917, 97 S. Ct. 2994, 53 L. Ed. 2d 1104 (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.”
33The Eighth Amendment, supra note 31.
34U.S. Const., Eighth Amendment; See, e.g., Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 [1977]; Eberheart v. Georgia, 433 U.S. 917, 97 S. Ct. 2994, 53 L. Ed. 2d 1104 (1977). (State death penalty for rape and kidnapping unconstitutional as disproportionate.)
35See Solem v. Helm, 463 U.S. 277, 284 (1983), overruled by Harmelin v. Michigan, 501 U.S.
957(1991). The proportionality of punishment to crime is, however, differently tested than the
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Early modernity thus developed two concepts in parallel: 1) |
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Interest |
balancing (political and thus |
and 2) |
proportionality (legal and thus justiciable).
The general principle of proportionality and interest balancing are sometimes subsumed into each other. However, they are in fact distinct mental operations. Late modernity sometimes links proportionality (means end testing) with balancing (cost benefit analysis) or with examining the relationship between the value of the right invaded and the extent of the invasion of that right. The latter view is the better one to avoid confusion between economic cost/benefit analyses balancing alienable economic rights against each other versus proportionality analysis of conflicting constitutional rights.
C. Contemporary Law
In E.U. law the proportionality test
proportionality of means to ends. (In Solem, the Court determined that objective criteria should guide the proportionality analysis. Solem, 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
36K. G. Jan Pillai, Incongruent Disproportionality, 29 HASTINGS CONST. L.Q. 645 (2002).
37See Anonymous, Federalist Papers; Montesquieu, Spirit of the Laws.
38Case
Viking Line ABP and OÜ Viking Line Eesti, 2007 E.C.R.
39Case
40Ralph
G. Steinhardt, Book Review, European
Administrative Law, 28 GEO. WASH. J. INT'L L. & ECON.
225,
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As already mentioned, the last step in
proportionality – the scrutiny as to whether the invasion of the
fundamental right is as
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 – We weigh the costs and benefits of a policy against the costs and benefits of another policy and determine which method generates the most social wealth. This is the proper contemporary use of the term
“balancing” but applies only to alienable (economic) rights, not to inalienable (fundamental, universal, human) rights. 3) Proportionality in the narrower sense – This last use of the term “balancing” should simply be avoided and allowed to fall into disuse to prevent confusion with the other
41Aristotle, supra note 8. “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.” (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).
42Cicero, De Republica (Commonwealth).
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two uses. “Proportionality in the narrower sense” or even “strict scrutiny” are both more exact and avoid the confusion of different concepts under one term. Any deep examination of the concept of balancing competing interests (the general mode of Interessenjurisprudenz) quickly reveals that interest balancing comprehends the comparison of costs and benefits associated with competing interests. Thus, it is about alienable economic rights rather than inalienable fundamental human rights.
IV. CONCLUSION
This historical overview aims to show 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. The principle, as a result,
became instantiated into law. First and most notably, the legal
instantiation of the principle is seen in the law of
Despite his sexism, racism and homophobia, Aristotle was right about materialism, the complimentary character of positive and natural law, and his theory of justice. The positive law / natural right distinction is an apt description of empirical legal reality. Some laws are natural and universal; others are local and positive. Aristotle's schema of law and justice holds.43 His distinction between commutative and distributive justice is tenable and useful. Aristotle serves as a good common universal
43 See, Eric Engle,
Aristotle, Law and Justice: The Tragic Hero,
35 N. KY. L. REV.
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starting point for contemporary thought about
proportionality. This brief historical overview hopefully
provides a complete 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.