The History of the General Principle of Proportionality: An Overview

Abstract:     
Proposes a brief history of the concept of proportionality in law in order to understand the appearance, worldwide, of the legal rule that state action must be a rational means to a permissible end which does not unduly invade protected human rights. I argue that the concept of proportionality (means-end rational review), though evolving in and through law, has shown remarkable continuity over several centuries, even millennia. The theory of proportionality is traced to Aristotle, and the practice of proportionality jurisprudence, developed over several centuries as an historical evolution refining and modifying Aristotle's original theory along the way. 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 post-positivist neo-naturalist perspective on law which unites both positive and natural law (post-positivist integration).

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 which should not be confused.

11 pages, 43 notes.

Number of Pages in PDF File: 11

Keywords: Aristotle, Cicero, Justinian, Aquinas, Grotius, Proportionality, Verhältnismäßigkeit, ratio, natural law, positivism, legal theory, jurisprudence, due process, substantive, constitution, economic, duncan, kennedy

JEL Classification: K1, K10, K19, K33

Accepted Paper Series