Proportionality (law)

Proportionality is a general principle in law which covers several separate (although related) concepts:

• The concept of proportionality is used as a criterion of fairness and justice in statutory interpretation processes, especially in constitutional law, as a logical method intended to assist in discerning the correct balance between the restriction imposed by a corrective measure and the severity of the nature of the prohibited act.
• Within criminal law, the concept is used to convey the idea that the punishment of an offender should fit the crime.
• Under
  armed conflict, proportionality and distinction are important factors in assessing military necessity
  .
• Under the United Kingdom's
  costs must be "proportionately and reasonably incurred", or "proportionate and reasonable in amount", if they are to form part of a court ruling on costs.^[1]

A concept of proportionality that was testable in law was first developed in the High State Administrative Courts (German: Oberverwaltungsgericht) in Germany in the late 19th century, to review actions by the police.^[2]

The proportionality test originated systematically with the jurisprudence of the Federal Constitutional Court, the Bundesverfassungsgericht.^[3]

European Union law

In European Union law there are generally acknowledged to be four stages to a proportionality test, namely,^[4]

• there must be a legitimate aim for a measure
• the measure must be suitable to achieve the aim (potentially with a requirement of evidence to show it will have that effect)
• the measure must be necessary to achieve the aim, that there cannot be any less onerous way of doing it
• the measure must be reasonable, considering the competing interests of different groups at hand

It is, however, often seen that the third and fourth criteria are often merged into one by the

In the European Convention on Human Rights, proportionality is one of main principles utilised by the European Court of Human Rights used for scrutinizing actions adopted by national authorities which restricts rights under the Convention^[5] - the other is the margin of appreciation.

Australia

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 under section 51 of the Constitution of Australia,^[6] has attracted divergent viewpoints, in which Kirby J has remarked that the 'test has not enjoyed universal favour'.^[7] However, Owen Dixon CJ 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]

Criminal law

In criminal law, the principle of

In self-defense cases, the amount of force employed by the defender must be proportionate to the threatened aggressive force. If deadly 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.

In

1. Compare the nature and gravity of the offense and the harshness of the penalty,
2. Compare the sentences imposed on other criminals in the same jurisdiction; i.e., whether more serious crimes are subject to the same penalty or to less serious penalties, and
3. Compare the sentences imposed for commission of the same crime in other jurisdictions.

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.

International humanitarian law

The harm caused to

Under international humanitarian law and the Rome 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,^[12] 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 Additional

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).

— 

Luis Moreno-Ocampo.^[14]

• Non-combatant Casualty Value
• Civilian casualty ratio
• Convention on Cybercrime
• Let the punishment fit the crime
• R. v. Oakes
  [1986] 1 S.C.R. 103
• Ryuichi Shimoda et al. v. The State
• Strict scrutiny

Notes