Understanding Proportionality in the Illegality Defence

(2020) 136 Law Quarterly Review, Forthcoming

23 Pages Posted: 3 Apr 2020

See all articles by Ernest Lim

Ernest Lim

National University of Singapore (NUS) - Faculty of Law

Francisco J. Urbina

Notre Dame Law School

Date Written: February 10, 2018

Abstract

While there is extensive analysis of proportionality in public law, little has been written about this subject in private law. This paper fills this gap in the literature by engaging in a comparative analysis of proportionality in private and public law, using the illegality defence, a crucial doctrine in private law, as a case study. In doing so, this paper clarifies, critiques and cautions against the use of proportionality in the illegality defence. Importantly, it demonstrates how the use of proportionality in the illegality doctrine is structurally similar to the proportionality requirements in public law. This comparison allows us to: clarify the indeterminate contents of the proportionality requirements in the illegality doctrine; specify their differences from those in public law; and demonstrate how the use of proportionality in the illegality defence is open to criticisms of indeterminacy, incommensurability and rights-based reasoning that have been levelled against its use in public law.

Keywords: Illegality defence, proportionality, public law, private law

Suggested Citation

Lim, Ernest and Urbina, Francisco Javier, Understanding Proportionality in the Illegality Defence (February 10, 2018). (2020) 136 Law Quarterly Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3551827

Ernest Lim (Contact Author)

National University of Singapore (NUS) - Faculty of Law ( email )

469G Bukit Timah Road
Eu Tong Sen Building
Singapore, 259776
Singapore

Francisco Javier Urbina

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
293
Abstract Views
975
Rank
197,621
PlumX Metrics