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Proportionality is a general principle in law which covers several separate (although related) concepts:
A concept of proportionality that was testable in law was first developed in theGermanadministrative courts in the late 19th century, notably the PrussianOberverwaltungsgericht (appeals court of general administrative jurisdiction), to reign in the discretion to act granted to the police by statute.[2] The proportionality test was later popularized by its application in the jurisprudence of theFederal Constitutional Court of Germany (Bundesverfassungsgericht), which took its existence for granted and transferred it to the field of constitutional law. In particular, it required statutes limiting fundamental rights and acts resting on such statutes to also satisfy the proportionality test.[3]
In European Union law there are generally acknowledged to be four stages to a proportionality test, namely,[4]
It is, however, often seen that the third and fourth criteria are often merged into one by theEuropean Court of Justice, depending on the margin of discretion that the Court sees as being afforded to the member state. Examples are found inR (Seymour-Smith) v Secretary of State for Employment, where the ECJ points out that a member state has some discretion in the policies it pursues, surroundingunfair dismissal, in reducing unemployment. Further examples of the proportionality test are seen inMangold v Helm andKücükdeveci v Swedex GmbH & Co KG.
In theEuropean Convention on Human Rights, proportionality is one of main principles utilised by theEuropean Court of Human Rights for scrutinizing actions adopted by national authorities which restrict rights granted by the Convention.[5] The other is themargin of appreciation.
While the European Union has placed a consistent focus on the proportionality test in the context of policy issues, namely human rights, the proportionality test in the Australian context is a matter of constitutional interpretation with respect to legislative power under the Constitution. Unlike Europe, the proportionality test as a means to characterize whether Commonwealth legislation falls under a head of power undersection 51 of the Constitution of Australia,[6] has attracted divergent viewpoints, in whichKirby J has remarked that the 'test has not enjoyed universal favour'.[7] However,Owen DixonCJ made clear that 'the question is essentially one of connexion, not appropriateness of proportionality, and where a sufficient connexion is established, it is not for the Court to judge whether the law is inappropriate or disproportionate'.[8]
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In criminal law, the principle ofproportional justice is used to describe the idea that the punishment of a certain crime should be in proportion to the severity of the crime itself. In practice, systems of law differ greatly on the application of this principle. The principle ofguilt is an absolute standard from which the 17th centuryBloody Code of England emerged, which specified thedeath penalty even for minor crimes. In the 18th centuryCesare Beccaria publishedOn Crimes and Punishments which was to form the basis ofpenology based on therelative standard ofculpability.
As a result,Jeremy Bentham developed the idea of thepanopticon in which prisoners would simply be watched, rather than subjected tocorporal punishment. The idea in practice became a cruel and ineffective corrective. In some systems, proportionality was interpreted aslex talionis, (an eye for an eye). In others, it has led to a more restrictive manner of sentencing: for example, all European Union countries have accepted as a treaty obligation that no crime warrants thedeath penalty, whereas some other countries in the world do use it.
In self-defense cases, the amount of force employed by the defender must be proportionate to the threatened aggressive force. Ifdeadly force is used to defend against non-deadly force, the harm inflicted by the actor (death or serious bodily harm) will be greater than the harm avoided (less than serious bodily harm). Even if deadly force is proportionate, its use must be necessary. Otherwise, unlawful conduct will only be justified when it involves the lesser harm of two harmful choices. If countering with non-deadly force or with no force at all avoids the threatened harm, defensive use of deadly force is no longer the lesser evil of only two choices. Alternatives involving still less societal harm are available.
InUnited States Law, theUnited States Supreme Court proposed the Proportionality Doctrine in three cases during the 1980s, namelyEnmund v. Florida (1982),Solem v. Helm (1983) andTison v. Arizona (1987), to clarify this key principle of proportionality within theCruel and Unusual Punishment Clause of theEighth Amendment. The fundamental principle behind proportionality is that the punishment should fit the crime. In 1983, the U.S. Supreme Court ruled that courts must do three things to decide whether a sentence is proportional to a specific crime:[9]
Proportionality is also present in other areas of municipal law in the United States, such as civil procedure. For example, it is embodied in Fed.R.Civ.P. 26(b)(2)(C), which considers whether the burden or expense of the proposed discovery outweighs its likely benefit.[10] Proportionality is a key consideration in the discovery process, and has been applied to e-discovery, where it has been attributed with significant cost-savings.[11] It is likely that proportionality will be applied to new and developing areas of law, such as the law of legal technology.
The term "proportionate" means two different things in the context oflaws of war:jus ad bellum andjus in bello.[12]
Thejus in bello principles which apply during a war require that the harm caused toprotectedcivilians or civilianproperty must be proportional and not "excessive in relation to the concrete and direct military advantage anticipated" by an attack on a military objective.[13][14]
Luis Moreno-Ocampo was theChief Prosecutor at theInternational Criminal Court who investigated allegations ofwar crimes during the2003 invasion of Iraq. He published an open letter containing his findings; in a section titled "Allegations concerning War Crimes", he elucidates this use ofproportionality:
Under international humanitarian law and theRome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives,[13] even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv)).
Article 8(2)(b)(iv) criminalizes:
Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
Article 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977 AdditionalProtocol I to the 1949Geneva Conventions, but restricts the criminal prohibition to cases that are "clearly" excessive. The application of Article 8(2)(b)(iv) requires,inter alia, an assessment of:
(a) the anticipated civilian damage or injury;
(b) the anticipated military advantage;(c) and whether (a) was "clearly excessive" in relation to (b).
Injus ad bellum, regarding whether it is lawful to go to war, proportionality has several meanings:
In thephilosophy of war, a war can only be just if it meets a number of criteria. One of those criteria, sometimes called "proportionality", is that the benefits projected from a war must be greater than the destruction, death and displacement likely to be caused by the war in total.[16]
Whetherreprisal attacks are legal in the first place is controversial. However,The Practical Guide to Humanitarian Law states that for reprisals to be legal "they must be carried out in response to a previous attack, they must be proportionate to that attack, and they must be directed only at combatants and military objectives".[17] The proportionality of the reprisal attack is measured in at least two ways. First is that the reprisal attack must not be "excessive" compared to the illegal action it is punishing. Second, the reprisal must stop if the illegal actions it is punishing have also stopped.[17]
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