Abstract

http://ssrn.com/abstract=1712449
 
 

Footnotes (102)



 


 



Proportionality in Perspective


Thomas M. Poole


London School of Economics & Political Science (LSE)

November, 20 2010

LSE Legal Studies Working Paper No. 16/2010

Abstract:     
This paper questions the received genealogy of proportionality, which traces its origins to continental European sources, especially German administrative law. The paper goes back to Plato and Cicero, two defining writers on law and politics in the classical world. Analysis of their work reveals a richer role for proportionality in visions of public law, and how deeply that idea is embedded in classical conceptions of justice. We see in Plato and Cicero two dimensions particularly worth noting. Proportionality is ‘rounded off’ in relation to an overarching scale of values – it has a metaphysical or celestial quality. Proportionality also ‘reaches out’ to identify the relevant political community to which proportionate justice is to apply – which, in Cicero, has a universal or universalising tendency. Returning to the present, the paper argues that the proportionality principle, while certainly attenuated when set against its classical forebears, shares some of the same features. In particular, modern conceptions of proportionality involve, whether explicitly or not, the phenomena of 'rounding off' and 'reaching out’, a point that is illustrated by referring to two different attempts to make sense of proportionality in common law judging. One, like Plato, turns inward to the (perceived) structure and values of the state. The other, following Cicero, turns outward in a search for more global standards of justice.

Number of Pages in PDF File: 18

working papers series





Download This Paper

Date posted: December 14, 2010  

Suggested Citation

Poole, Thomas M., Proportionality in Perspective (November, 20 2010). LSE Legal Studies Working Paper No. 16/2010. Available at SSRN: http://ssrn.com/abstract=1712449 or http://dx.doi.org/10.2139/ssrn.1712449

Contact Information

Thomas M. Poole (Contact Author)
London School of Economics & Political Science (LSE) ( email )
Houghton Street
London, WC2A 2AE
United Kingdom
HOME PAGE: http://www.lse.ac.uk/collections/law/staff/thomas-poole.htm
Feedback to SSRN


Paper statistics
Abstract Views: 1,690
Downloads: 381
Download Rank: 44,606
Footnotes:  102

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.375 seconds