Proportionality as Fittingness: The Moral Dimension of Proportionality

37 Pages Posted: 1 Nov 2019 Last revised: 4 May 2020

See all articles by George Letsas

George Letsas

University College London - Faculty of Laws

Date Written: January 10, 2018

Abstract

Outside law we often judge an action to be wrongful in virtue of being disproportionate. This paper aims to develop a moral account of proportionality as it figures outside law, with a view to shed light on legal doctrines that employ proportionality reasoning. The understanding of proportionality as a balancing act between harms and goods, popular amongst lawyers, lacks a moral dimension capable of justifying why disproportionate action is wrong. The paper defends instead a reason-based approach. It argues that the moral dimension of proportionality lies in the idea of obligations of role: an action is proportionate when it fits the reasons that pertain to the normative role of the acting agent, properly understood. Proportionality as fittingness captures better not only the use of proportionality outside law but also judicial outcomes under proportionality reasoning.

Keywords: proportionality, balancing, human rights, interpretation, fundamental rights, judicial review

Suggested Citation

Letsas, George, Proportionality as Fittingness: The Moral Dimension of Proportionality (January 10, 2018). Available at SSRN: https://ssrn.com/abstract=3474324 or http://dx.doi.org/10.2139/ssrn.3474324

George Letsas (Contact Author)

University College London - Faculty of Laws ( email )

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London, WC1E OEG
United Kingdom

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