Abstract
Examines the intellectual origins and legal development of the principle of proportionality in Aristotle, Aquinas and Grotius. Proportionality first applied to the law of self defence, then to police and administrative law, and then to constitutional law. Because interest balancing and proportionality are two different methods referring to two different types of rights the use of the term “balancing” in proportionality discourse should be avoided entirely. Distributive proportionality, economic cost benefit analysis, and lex talionis are three distinct interpretive methods which should not be confused.
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- 1.
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).
- 2.
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.
- 3.
Id.
- 4.
“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).
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- 6.
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).
- 7.
EN 1131 a 24–28.
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“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).
- 9.
“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).
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“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.”
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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).
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Also see Aquinas Sum. Theol. 2a2ae 40.
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“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).
- 14.
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.”
- 15.
Remmert (1995).
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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”.
- 17.
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).
- 18.
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”.
- 19.
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).
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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).
- 23.
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).
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Engle, E. (2013). The General Principle of Proportionality and Aristotle. In: Huppes-Cluysenaer, L., Coelho, N. (eds) Aristotle and The Philosophy of Law: Theory, Practice and Justice. Ius Gentium: Comparative Perspectives on Law and Justice, vol 23. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-6031-8_15
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