Citation:
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).