Some Critical Thoughts on Proportionality
In Reasonableness and the Law, 251 (2009), Giorgio Bongiovanni, Giovanni Sartor and Chiara Valentini (Eds.)
8 Pages Posted: 27 Dec 2017
Date Written: January 19, 2009
In this short paper I wish to raise several critical thoughts on the doctrine of proportionality. Proportionality, has achieved unprecedented scope; this is what professor Stone Sweet has termed the “diffusion of proportionality”. That something major has happened with regards to proportionality is therefore indisputable. Nevertheless, it would be worthwhile to ask the following three questions, which I would like to touch upon in this essay. First, what exactly has happened? That is, what are the contours of this phenomenon, its inter-relations with other phenomena, its history, genealogy and meaning? Secondly, and most controversially is the normative question: is what happened good or bad? I would like to raise some possible difficulties concerning arguments in support of proportionality. Finally, there is a third, maybe surprising question. It addresses not what has happened, nor whether it is good or bad, but rather what will happen next? More specifically it asks whether what has happened is irreversible, and will it last?
Keywords: proportionality, reasonableness, balancing
JEL Classification: K1
Suggested Citation: Suggested Citation