This book addresses the principle of proportionality, which is currently one of the most important instruments of judicial review, from both analytical and theory of law perspectives. As such, the analysis provided is far more comprehensive and can be applied to all areas of law, not just constitutional law. On the one hand, the volume offers a broad perspective on several aspects related to proportionality, such as its structure, the balancing methodology and the distinction between rules and principles. (...) On the other, it provides an innovative, normativist and analytical approach to proportionality, helping readers understand its structure and behaviour. (shrink)

Introduction -- What is proportionality? -- Proportionality : a multiplicity of meanings -- Proportionality in the just war tradition -- Proportionality in international humanitarian law -- Proportionality in human rights law and morality -- The uniqueness of jus in bello proportionality -- Countermeasures and counterinsurgency -- Human shields and risk -- Targeted killings and proportionality in law : two models -- The nature of war and the idea of "cyberwar" -- Thresholds of jus (...) in bello proportionality. (shrink)

This book casts new light on the application of the principle of proportionality in international law. Proportionality is claimed to play a central role governing the exercise of public power in international law and has been presented as the 'ultimate rule of law'.

Proportionality in Action presents an empirical and comparative exploration of the proportionality doctrine, based on detailed accounts of the application of the framework by apex courts in six jurisdictions: Germany, Canada, South Africa, Israel, Poland and India. The analysis of each country is written and contextualized by a constitutional scholar from the relevant jurisdiction. Each country analysis draws upon a large sample of case law and employs a mixed methodological approach: an expansive coding scheme allows for quantitative analysis (...) providing comparable and quantifiable measurements, which is enriched by qualitative analysis that engages with the substance of the decisions and captures nuance, contextualizing the data and providing it with meaning. The book concludes with a comparative chapter that synthesizes some of the most interesting findings. Focusing on deviations of the practice of proportionality from theory, the authors conclude their argument in support of an integrated approach to the application of proportionality. (shrink)

Proportionality is a German, and thus continental European, concept in public law that is applied by both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). The principle specifies that measures adopted by executive authorities should not exceed the limits of what is appropriate and necessary in order to achieve legitimate objectives in the interest of the public. Using a functional comparative approach, this book evaluates the extent to which proportionality (...) has been integrated into the English and Hong Kong judicial systems by comparing case law in these courts with that of the CJEU and the ECtHR. The text also reviews the development of proportionality and presents a topical understanding of why its adoption and application have encountered difficulties, particularly regarding socio-economic rights, in some jurisdictions, such as the United Kingdom and Hong Kong. Written by a scholar with experience from both within the Hong Kong judicial system and from international research, this book is the first all-encompassing reference for legal practitioners worldwide." -- Provided by publisher. (shrink)

Across a broad range of subjects, there is now wide agreement that the principle of proportionality governs the extent to which a provocation may lawfully be countered by what might otherwise be an unlawful response. That is the central role assigned to proportionality in international law and it is deeply rooted in the cultural history of societies. However, if the core institutions of a legal system are too weak to be relied upon to take remedial action against wrongdoers, (...) then they must at least be authorized to license appropriate action by the wronged party and to insure that its response remains within prescribed parameters. The practice described in this essay demonstrates that a high degree of accord is emerging across a broad range of issues to the appropriate standards by which the proportionality of countermeasures can be assessed. The practice of various institutions authorized to render second opinions as to the compliance with those standards is gradually narrowing the range of indeterminacy inherent in the term proportionality. Some of this case law has been disappointingly episodic. The well-crafted second opinion, through its precision, its invocation of precedent, and its careful weighing of the probity of the facts presented to it, deepens and narrows the jurisprudential stream while strengthening its embankments. If applied in practice through second opinions rendered by legitimate institutions, proportionality is an example of an indeterminate principle becoming gradually empowered to provide persuasive answers to difficult questions and, thereby, case by case, building the objective determinacy of the principle. (shrink)

Proportionality has become one of the primary standards for violations of fundamental and human rights in various constitutional and international jurisdictions. Proportionality in the strict sense requires a comparison of the infringement of a right with the achievement of a state interest pursued by a measure. The incommensurability of the two is an often-raised challenge to this comparison. The Article does not adopt a fully-fledged sceptical stance. Instead, it looks to proportionality as a means of overcoming the (...) challenge of incommensurability. It then examines the structure of comparisons in general and of comparisons of incommensurables employing proportionality in particular. As for the latter it focuses on its performance by exploring the example of decathlon, where this type of comparison works exceptionally well. The example allows us to analyse the preconditions for comparing incommensurables. Unfortunately, most of these preconditions are lacking in the law. This explains why the proportionality principle in law only produces convincing results in cases where the disproportionality is very pronounced. In many other cases, however, the courts decide based on proportionality as well. This raises the question: What is really going on in these cases? The article concludes with a brief account of a benevolent explanation. (shrink)

When the US Supreme Court decided in Graham v. Florida that the Cruel and Unusual Punishments Clause of the Eighth Amendment of the Constitution prohibits a sentence of life in prison without parole for a nonhomicide crime committed by a minor, it stated that “[t]he concept of proportionality is central to the Eighth Amendment” and that it is the “precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” These statements make two claims—one legal (...) and one philosophical. The philosophical claim is that justice requires proportionality in punishment, and the legal claim is that this principle of justice is central to the Eighth Amendment ban on cruel and unusual punishments. The aim of this chapter is to examine the concept of proportionality in punishment from multiple vantage points—practical, legal, and philosophical—and consider its enduring importance and persistent difficulties. (shrink)

To speak of human rights in the twenty-first century is to speak of proportionality. Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, South Africa, and the United States, as well as the jurisprudence of treaty-based legal systems such as the European Convention on Human Rights. Proportionality provides a common analytical framework for resolving the great moral and political questions confronting political communities. But behind the singular (...) appeal to proportionality lurks a range of different understandings. This volume brings together many of the world's leading constitutional theorists - proponents and critics of proportionality - to debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning. Their essays provide important new perspectives on this leading doctrine in human rights law. (shrink)

There is widely thought to be a proportionality constraint on harming others in self-defense, such that an act of defensive force can be impermissible because the harm it would inflict on an attacker is too great relative to the harm to the victim it would prevent. But little attention has been given to whether a corresponding constraint exists in the ethics of compensation, and, if so, what the nature of that constraint is. This article explores the issue of (...) class='Hi'>proportionality as it applies to the liability to compensate. The view that some perpetrators are not liable to pay full compensation because doing so would be disproportionately burdensome is clarified and defended, and it is asked what view we should adopt instead. A key step in that inquiry is an argument that someone is liable to bear the cost of compensating for an injury if and only if she would have been liable to bear that same cost in defense against that same injury ex ante. (shrink)

According to a well-known principle in democratic theory, all those whose interests are affected by a decision should have a say in it. ‘How much of a say?’ is the next question. One answer is the Proportionality Principle, according to which ‘people should have a say in a decision proportionally to the extent that their interests are affected by it’. It is often suggested that this principle should be implemented through weighted voting. This article considers an alternative: weighting as (...) part of internal deliberation before the casting of votes. Instead of weighting votes as we count them, we could apply the Principle to the more fundamental process by which citizens form their judgements about how to vote. This alternative approach conceives of citizens as fulfilling dual roles: first, as _claim-makers_ advancing claims about what the collective decision should be, based _inter alia_ on how it impacts their own interests, and, second, as _adjudicators_ taking into account everyone’s claim by weighing it proportionally to the degree each claimant is affected by the collective decision. I examine the democratic and epistemic strengths of this alternative as well as its weaknesses, compared to the more standard way of implementing the Proportionality Principle via weighted voting. (shrink)

Efforts to apply the principle of proportionality to criminal sentences are notoriously problematic. But even though they are daunting, only a few legal philosophers believe we should give up trying to do so. Perhaps we can make progress overcoming some of the many legal difficulties by attending to how the principle is applied in non-legal contexts—that is, in contexts I call personal life. Proportionality, I believe, is an attractive principle in penal sentencing because it is an attractive principle (...) in ordinary situations in which persons are sanctioned for wrongdoing. I briefly mention several familiar non-legal contexts in which sanctions have recently been imposed on celebrities or public figures for real or perceived wrongdoing. My hope is that sensitivity to how the principle of proportionality is interpreted in these contexts might facilitate efforts to apply this principle to sentencing domains. At first glance, proportionality as applied in non-legal contexts appears to differ from its penal analogue. I describe some of these alleged differences. Among the foremost is that judgments of proportionality in personal life often respond to how the transgressor has behaved apart from the particular incident that has attracted media attention. Penal sanctions, by contrast, are said to be imposed only for the particular crime charged. I argue that this difference is more apparent than real. I conclude that we can reach a few modest insights about how to apply the principle of proportionality in criminal sentencing by attending to its counterpart in personal life. (shrink)

Abstract This article lays a theoretical foundation the perspective of international law for applying the principle of proportionality of cause in modern just war theory. It proposes an analytical framework for measuring proportionality based on general tort law, filtered through the international law of state responsibility. It proposes assessing the use of force as a proportionate (or disproportionate) remediation for an injury (present or future) caused by another state that is in breach of its legal obligations. The article (...) then applies this approach to the problems of anticipatory self-defense and humanitarian intervention. (shrink)

Across a wide range of legal contexts, E. Thomas Sullivan and Richard S. Frase identify three basic ways that government measures and private remedies have been ...

The doctrine of proportionality seeks to limit arbitrary and capricious punishment in order to ensure that offenders are punished according to their ‘just desert’. In Australian sentencing law, proportionality goes some way toward achieving this ‘balanced’ approach by requiring a court to consider various and often competing interests in formulating a sentence commensurate with offence seriousness and offender culpability. Modification of sentencing law by the introduction of victim impact statements or the requirement that sentencing courts take explicit account (...) of the harm done to the victim and community has generated debate, however, as to the extent to which offenders may be now subject to unjustified, harsher punishments. This article proposes that in order to overcome the controversy of the modification of offender and victim rights in sentencing, sentencing courts adhere to a doctrine of proportionality that is explicitly sensitive to the needs of victims and offenders in a model of restorative justice that focuses on the consequences of crime as against the individual, rather than the state. The extent to which proportionality, as the current constitutive principle of Australian sentencing law, may be modified to better encourage a dialogue between victim and offender is discussed. (shrink)

Setting out the 'state of the art' in proportionality doctrine, this book combines theoretical reconstruction with case-law examples, defending and developing the dominant model of proportionality.

With contributions from leading scholars in constitutional law, this volume examines how carefully designed and limited doctrines of proportionality can improve judicial decision-making, how it is applied in different jurisdictions, its role on constitutionalism outside the courts, and whether the principle of proportionality actually advances or detracts from democracy. Contributions from some of the seminal thinkers on the development of scholarship on proportionality extend their prior work and engage in an important dialogue on the topic. Some offer (...) substantial critiques, others defend the doctrine and offer important clarifications and extensions of their prior work. Throughout, the authors engage not only with case law from around the world but also with existing scholarly treatments of the subject. Mathematical treatments are avoided, making the book accessible to readers from both 'soft' and hard' social science backgrounds. (shrink)

The doctrine of proportionality has received sustained attention from comparative constitutional scholars. Yet it is an area where courts, and scholars, have made limited use of empirical or inter-disciplinary approaches to constitutional comparison. The article calls for a change in this practice as part of a broader call for greater dialogue between scholars and practitioners of conceptual and more empirical forms of constitutional comparison.

The principle of proportionality, which has become the standard test for adjudicating human and constitutional rights disputes in jurisdictions worldwide has had few critics. Proportionality is generally taken for granted or enthusiastically promoted or accepted with minor qualifications. A Critique of Proportionality and Balancing presents a frontal challenge to this orthodoxy. It provides a comprehensive critique of the proportionality principle, and particularly of its most characteristic component, balancing. Divided into three parts, the book presents arguments against (...) the proportionality test, critiques the view of rights entailed by it, and proposes an alternative understanding of fundamental rights and their limits. (shrink)

There is a well-known American legal maxim, hard cases make bad law. If we agree that Mr. J’s case is hard, what lessons follow from the application of current ECMO guidelines and what kind of supp...

BackgroundThe COVID-19 pandemic has presented extraordinary challenges to worldwide healthcare systems, however, prevalence remains low in some countries. While the challenges of conducting research in high-prevalence countries are well published, there is a paucity from low COVID-19 countries.MethodsA PRISMA guided systematic review was conducted using the databases Ovid-Medline, Embase, Scopus and Web of Science to identify relevant articles discussing ethical issues relating to research in low prevalence COVID-19 countries.ResultsThe search yielded 133 original articles of which only 2 fit the inclusion (...) criteria and aim, with neither specific to low prevalence. Most of the available literature focused on clinical management and resource allocation related to high prevalence countries. These results will be discussed under the ethical dimensions of equity, individual liberty, privacy and confidentiality, proportionality, public protection, provision of care, reciprocity, stewardship and trust..ConclusionsA systematic review failed to identify articles relating to COVID-19 research ethics, specific to low prevalence countries. It shows that there is a significant gap in the literature that warrants further investigation. Common ethical principles were used to present a distinct set of challenges experienced by a country with a low prevalence of COVID-19. This unique perspective of some of the common ethical problems surrounding research, may help guide further discussion and guide research in similar countries. (shrink)

The book applies the principle of proportionality to a number of conventional wisdoms in the social sciences, such as in dubio pro reo and the assumption that a crime is always a crime; that you must go to war if instructed to do so. Individuals and states are not obliged to come to the aid of stricken individuals and states. The book is organised in seven chapters, each dealing with a self-standing theme related to proportionality.

本书内容包括:比例原则之界定,比例原则的回溯与前瞻,比例原则的理论基础,比例原则的功能与局限,比例原则于我国公法中适用的若干探讨.

The ethics of policing currently neglects to provide a framework for analysing the morality of deliberate inactions to prevent harm, even though these are often adopted tactically by police as a means of preventing greater harms. In this paper we argue (a) that police have special moral obligations to prevent harm, grounded both in a contractarian account of police legitimacy and in the interpersonal morality of associations and (b) that police are morally culpable for failures to fulfil these special obligations (...) when these are neither proportionate nor necessary to the prevention of greater crime-related harms. Our claims have implications both for the morality of policing and for its regulation and governance under human rights legislation, which we argue should be reformed so as to recognise police culpability not only for inflictions of harm, but also for failures to prevent it. (shrink)

A recent empirical study has argued that experts in the ethics or the law of war cannot reach reasonable convergence on dilemmas regarding the number of civilian casualties who may be killed as a side effect of attacks on legitimate military targets. This article explores the philosophical implications of that study. We argue that the wide disagreement between experts on what in bello proportionality means in practice casts serious doubt on their ability to provide practical real-life guidance. We then (...) suggest viewing in bello proportionality through the prism of virtue ethics. (shrink)

In this paper, I offer an analytical and normative framework to re-visit the question of whether state parties should derogate from the European Convention on Human Rights (ECHR) in order to combat the COVID-19 pandemic via harsh ‘lockdown’ measures. It is three-pronged. First, I show that the predominant debate on the (non-)derogation question is informed by a textual approach to adjudication, which severely limits the analytical and evaluative horizon for addressing the issue. Most importantly, it cannot address one salient fact (...) about the effects of lockdown measures, namely their highly disproportionate effects on vulnerable groups and minorities. Second, I argue that proportionality assessment should be the basis for determining whether state parties ought to derogate or not. This is because proportionality’s very purpose is in part to track the effects of state interferences on minorities and vulnerable groups by measuring the disproportionate burden imposed on them. It is also because proportionality assessment has very different requirements between limitation clauses built into the relevant Convention articles (e.g. Article 5, Articles 8–11) and the derogation clause (Article 15) under the ECHR. Surprisingly, while the emerging literature almost always mentions proportionality as an important component of the analysis, it does not investigate the extent to which each regime (derogation or limitation) better performs it, and why. Third, I draw from the philosophical literature on the ‘right to justification’ to clarify the egalitarian and justificatory function of proportionality. Unlike derogation, limitation clauses have a much higher and systematic requirement of justification, which makes the case for non-derogation clearer and stronger. (shrink)

How is legitimacy to be secured for constitution-like legal orders operating beyond the state? Some scholars recommend connecting aspects of global law to human rights adjudication and enforcement by adopting their preferred method for resolving conflicts, namely, proportionality analysis. Adopting a frame of analysis widely embraced by apex courts might generate the requisite regime legitimacy, it is argued. This turns out to be a strategy that is difficult to pursue in the realm of international investment law, a global legal (...) order made up of over 3,300 investment and regional treaties, enforced by private systems of dispute resolution, that incorporates standards of treatment familiar to national constitutional law. By undertaking an analysis of statements made by relevant actors in the field, principally investment lawyers and arbitrators, we learn that there is not that much interest in taking up proportionality analysis, despite the legitimacy problems that continue to dog the system. Whatever the purported advantages of turning to proportionality, it turns out that investment lawyers and arbitrators are not so interested in embracing logics other than one preoccupied with owing solicitude to foreign investors. This reluctance renders investment law a less legitimate, and therefore less sustainable, form of constitution-like global law. (shrink)

The second edition of this volume is a comprehensive, practical and up-to-date analysis of the principles and rules of construction and post-probate issues, including how the courts interpret wills once they become the subject of litigation. This comprehensive work takes account of all recent case law-as well as new legislation such as the Land and Conveyancing Law Reform Act 2009-pertaining to trustees, trusts, trusts of land, and the amendments of the Rules of the Superior Courts by SI No 254 of (...) 2016 relating to the conduct of trials, and SI No 255 of 2016 which deals with pre-trial procedures. Part 1 provides the principles and rules of construction, and the rules of intrinsic and extrinsic evidence, which are applied by the courts when attempting to ascertain and give effect to a testator's intention from vague or uncertain language used by him or her in creating gifts. Part 2 deals with issues that may arise in construction suits concerning, not only uncertain language used in the creation of gifts, but also the actual legal validity of such gifts. Part 3 supplies a useful constructive and interpretative methodology that may be applied for construing and interpreting relevant statutory provisions. Part 4 deals with the forms and procedures required for instituting construction suits, and with issues involving the award of costs. This book is written primarily with legal practitioners in mind and will be of practical use in construction and probate litigation matters. It will also be a useful resource for academic lawyers, students engaged in professional courses, and those undertaking law degrees. [Subject: Wills & Trusts, Irish Law]. (shrink)

Proportionality, as a concept, does not contain any inherent standards, but rather refers to a proper balance between all relevant factors. It is nevertheless necessary to make analytical distinctions that help identify the premises of its application within different contexts. This is particularly true for an area like international humanitarian law in which a proper focusing of the principle of proportionality is crucial. This article suggests that the distinction between a “thin” and a “thick” approach is a helpful (...) analytical tool depending on the number and the character of factors to be taken into account in the application of the principle of proportionality. The judgment of the Supreme Court of Israel on the permissibility of “targeted killings” is used to exemplify the drawbacks and advantages of both approaches. (shrink)

The aim of this article is to investigate the problem how and to what extent human rights affect the relationships between private parties and what consequences this effect has for the development of private law in Lithuania and other European countries. Because Lithuanian legal doctrine lacks relevant research on this subject-matter, the author seeks to start and invoke the beginning of conceptual academic discourse on the matter. It is argued that despite the fact that in many countries the impact (whether (...) direct or indirect) of human rights on private law has recently become a powerful means of developing the law, the application of human rights in private law has not only its positive side but it also invokes very serious problems to be solved and raises conceptual questions that should be answered. Thus, in order to ensure stable, reliable and respectable development of influence of human rights on private law as a beneficial tool to protect human rights in certain cases, there is a need for continuous, complex and multi-level academic conceptual comparative studies of the issue in order to answer how to reconcile the constitutionalisation of private law with the principles of legal certainty and proportionality and what are the criteria for the limits of the effect of human rights on private law in order to ensure a fair balance, protect stability and predictability in law. (shrink)

Despite its preeminent position in the just war tradition, the concept of proportionality is not well understood by military leaders. Especially lacking is a realization that there are four distinct types of proportionality. In determining whether a particular resort to war is just, national leaders must consider the proportionality of the conflict, i.e., balance the expected gain or just redress against the total harm likely to be inflicted by the impending armed action. This proportionality consideration is (...) called jus ad bellum proportionality. The second type of proportionality discussed is a continuing re-evaluation of the proportionality, taking into account the changing situation. The last true proportionality discussed is a consideration of hostile action taking during a conflict, or jus in bello proportionality. This consideration weighs the expected military gain of a particular action against the collateral damage and injuries that are expected from the act. Finally, the fourth category addressed is ‘political proportionality’, which is not a true proportionality consideration, but is rather self-interested deliberation on the possible political and military outcomes of actions. In some instances, it could be referred to as a measured response. A better understanding of proportionality in all its forms will help military leaders to give appropriate and moral advice on the potential resort to war, as well as on the conduct of military actions in war. The recent US war with Iraq in the spring of 2003 in defiance of the wishes of the majority of the UN Security Council, and especially with the potential for high noncombatant casualties in Baghdad, makes a discussion of the proper conduct of war even more poignant. (shrink)

Many just war theorists (call them traditionalists) claim that just as people have a right to personal self-defense, so nations have a right to national-defense against an aggressive military invasion. David Rodin claims that the traditionalist is unable to justify most defensive wars against aggression. For most aggressive states only commit conditional aggression in that they threaten to kill or maim the citizens of the nation they are invading only if those citizens resist the occupation. Most wars, then, claimed to (...) be justified by the traditionalist fail to meet the proportionality criterion. Thus, a just war, for Rodin, is best conceived of as a punitive war of law enforcement, not as a war of national-defense. I argue that Rodin does not have a case against the traditionalist. If national-defense is a disproportionate response to conditional aggression, then punitive war is a disproportionate response as well. Furthermore, the belief that punitive war is a proportionate response to conditional aggression underscores the traditionalist’s view that self-determination, cultural identity and the like are of sufficient value to defend by means of lethal force. I end the paper by very briefly sketching an account, different from that of Rodin’s, of how individual nations can be justified in waging wars of law enforcement. (shrink)

The article considers a surprisingly resilient argument, going back to Adam Smith, for the fairness of proportionate taxation: that proportionate taxation represents the fair way to divide the surplus value produced by social cooperation among all of society's members. The article considers two recent variants on that argument, one by Richard Epstein in Takings and one by David Gauthier in Morals by Agreement. It concludes that the normative and empirical assumptions that underlie these, and all other variants, of the argument (...) are so implausible as to suggest the argument cannot be taken seriously as a defense of proportionate taxation. The article concludes by considering other possible explanations for the enduring attraction of proportionate taxation for political philosophers, particularly those with libertarian and quasi-libertarian leanings. Footnotes I am grateful to participants in faculty workshops at Vanderbilt, NYU, Virginia and Stanford Law Schools and the Qunnipiac College School of Law Conference on Law and Philosophy, as well as the anonymous outside readers for this journal, for their very helpful comments on earlier drafts. (shrink)

Proportionality is a central and globally spread argumentation technique in public law. This article provides a conceptual introduction to proportionality and argues that such a domain-specific form of argumentation is particularly interesting for argument mining. As a major contribution of this article, we share a new dataset for which proportionality has been annotated. The dataset consists of 300 German Federal Constitutional Court decisions annotated at the sentence level (54,929 sentences). In addition to separating textual parts, a fine-grained (...) system of proportionality categories was used. Finally, we used these data for a classification task. We built classifiers that predict whether or not proportionality is invoked in a sentence. We employed several models, including neural and deep learning models and transformers. A BERT-BiLSTM-CRF model performed best. (shrink)

The law values fairness, proportionality, and predictability. Accordingly, in the context of criminal law, punishments should be carefully calibrated to reflect the harm caused by an offense and the culpability of the offender. Yet, while this would suggest the dominance of “smooth” input/output relationships—for example, such that a minuscule increase in culpability would result in a correspondingly small increase in punishment—in fact, the law is laden with “bumpy” input/output relationships. Indeed, a minuscule change in input (be it of harm, (...) culpability, or any number of other measures) may result in a drastic change in output, creating significant discontinuities. Leading scholars have argued that smooth input/output relationships, which feature careful gradation and calibration, better accord with dominant theories of punishment than do bumpy relationships, which lack fine-tuning. Accepting as a starting premise that smooth input/ output relationships are to be preferred in the criminal law, this Article focuses on the significant doctrinal and practical impediments to smoothing out these relationships. This analysis reveals challenges to smoothing out relationships between inputs and outputs, as well as the difficulties associated with addressing discontinuous relationships among inputs and outputs. Specifically, it exposes the law’s classification of inputs and outputs itself as contestable and responsible for a range of hard-to-resolve discontinuities. In doing so, this Article begins the task of laying the groundwork for further analysis and possible reforms. (shrink)

How do civilians react to being harmed in war? Existing studies argue that civilian casualties are strategically costly because civilian populations punish a belligerent who kills civilians and support the latter's opponent. Relying on eighty-seven semi-structured interviews with victims of coalition attacks in Afghanistan, this article shows that moral principles inform civilians’ attitudes toward their own harming. Their attitudes may therefore vary with the perceived circumstances of an attack. Civilians’ perception of harm as unintended and necessary, in accordance with the (...) moral principles of distinction and necessity, was associated with narratives that cast an attack as relatively more legitimate and with a partial or full release of the coalition from blame. The principle of proportionality, which requires that civilian casualties are caused in pursuit of a legitimate war aim, informed their abstract attitudes toward civilian casualties in Afghanistan. Two rules of international law, which accord with the moral principles of distinction and necessity, were reflected in the civilians’ attitudes. The legal rule of proportionality, which diverges from the namesake moral principle, failed to resonate with the civilians. The article explores whether compliance with the legal rules of distinction and necessity can contribute to mitigating the strategic costs of civilian casualties. (shrink)

Proportionality is widely accepted as a necessary condition of justified self-defense. What gives rise to this particular condition and what role it plays in the justification of self-defense seldom receive focused critical attention. In this paper I address the standard of proportionality applicable to personal self-defense and the role that proportionality plays in justifying the use of harmful force in self-defense. I argue against an equivalent harm view of proportionality in self-defense, and in favor of a (...) standard of proportionality in self-defense that requires comparable seriousness and takes into account the wrong, as opposed simply to the harm that the victim is fending off. I distinguish the standard of proportionality in self-defense from proportionality in circumstances of necessity, and I discuss whether proportionality is an internal or an external constraint on the right of self-defense. (shrink)

When a Jehovah’s Witness patient is traumatically injured, the lack of uniform professional consensus guidelines and the cultural knowledge deficit of many clinicians adds an additional layer of legal and ethical complexity to the inherent difficulty of managing a critically ill patient. We present here the case of an incapacitated Jehovah's Witness patient with severe traumatic hemorrhagic shock. We go on to discuss the historical and contemporary case law on proxy refusal of blood transfusion for the incapacitated adult, as well (...) as the ethics of self-determination and the application of the principle of proportionate reason in the management of the critically injured Jehovah's Witness patient. (shrink)

The present paper deals with an investigation of the conception and development of the idea (principle) of proportionality, the variety of concepts and the procedure for the verification of the principle of proportionality. The genesis of the conception of coercive measures is studied by reviewing the process of the formation of the current principle of proportionality manifested in the historical sources of the law of Prussia, Germany, and the evolution of the principles consolidated in them. The principle (...) of proportionality consolidated in the case-law of the European Court of Justice and of the European Court of Human Rights is analyzed as well. (shrink)

Arthur Kaufmann is one of the most prominent figures among the contemporary philosophers of law in German speaking countries. For many years he was a director of the Institute of Philosophy of Law and Computer Sciences for Law at the University in Munich. Presently, he is a retired professor of this university. Rare in the contemporary legal thought, Arthur Kaufmann's philosophy of law is one with the highest ambitions — it aspires to pinpoint the ultimate foundations of law by explicitly (...) proposing an ontology, a general theory of knowledge and concept of a person. Kaufmann's work derives, first of all, from the thinking of Gustav Radburch, his teacher, and then from ideas of Karl Engish and Hans-Georg Gadamer. The philosophy undertakes to pursue the ultimate foundation of law, law which is understood by Kaufmann, first of all, as a "concrete judgement" that is, what is right in a concrete situation. Justice belongs to the essence of law and "unjust law" is contradictio in adiectio. Kaufmann opposes all those theories, which as the only foundation for establishing just law (Recht) adopt legal norms (Gesetz). In Kaufmann's opinion , such theories are powerless in the face of all types of distortions of law rendered by political forces. He suggests that the basic phenomenon which needs to be explained and which cannot be disregarded by a philosopher of law is so-called "legal lawlessness" ("Gestzliches Unrecht"). "Legal lawlessness" which forms a part of life experience for the people of twentieth century totalitarian states. It proved "with the accuracy of scientific experiment" that the reality of law consists of something more than bare conformity with legal norms. The existence of lex corrupta indicates that law contains something "non-dispositive" which requires acknowledgment of both law-maker and judge. Kaufmann, accepting the convergent concept of truth and cognition, assumes that "non-dispositive" content, emerging as the conformity of a number of cognitive acts of different subjects (inter-subjective communicativeness and verifiability), indicates the presence of being in this cognition. The questions "What is law?" and "What are the principles of a just solution?" lead straight to the ontology of law, to the question about the ontological foundations of law. Kaufmann discerns the ontological foundations of law in the specifically understood "nature of things" and, ultimately, in a "person". He proposes a procedural theory of justice, founded on a "person". In my work, I undertake to reconstruct the train of thought which led Kaufmann to the recognition of a "person" as the ontological foundation of law. In the first part, the conception of philosophy adopted by Kaufmann, initial characteristics of law — of reality which is the subject of analysis, as well as, the requirements for proper philosophical explanation of law posed by Kaufmann are introduced. In the second, Kaufmann's reconstruction of the process of the realisation of law is presented. Next, the conception of analogy which Kaufmann uses when explaining law is analyzed. In the fourth part, Kaufmann's conception of ontological foundations of law is discussed. A critical analysis is carried out in which I demonstrate that the theory of the ontological foundation of law proposed by Kaufmann and the concept of a person included in it do not allow a satisfac¬tory explanation of the phenomenon of "legal lawlessness" and lead to a number of difficulties in the philosophical explanation of law. Finally, the perspectives of a proper formulation of the issue of the ontological foundations of law are drafted in the context of the analyzed theory. My interest is centered on the conception of philosophy adopted by Kaufmann, according to which the existence of the reality is inferred on the basis of a certain configuration of the content of consciousness, whereas at the point of departure of philosophy of law, the data to be explained is a certain process, which is, basically, a process of cognition, while the reality appears only as a condition for the possibility of the occurrence of the process. I wish to argue that the difficulties which appear in the explanation of law are a consequence of the assumed fundamental philosophical solu¬tions, which seem to be characteristic, though usually not assumed explicitly, in philoso¬phy and theory of law dominant at present in continental Europe. Thereby, I wish to show the significance of ontological and epistemological solutions to the possibility of a proper formulation of the problems posed by philosophy and theory of law. Kaufmann proclaims himself in favour of a philosophy which poses questions about the ultimate foundations of understanding of the reality. In epistemology, he assumes that answers to the questions "What is reality like?" and ultimately "What is real?" are inferred on the basis of uniformity of a cognitive acts of different subjects. Cognition of the reality is accomplished exclusively through the content of conceptual material. The two fundamental questions posed by philosophy of law are "What is just law?" and "How is the just law enacted?" The latter is a question about the process of achieving a solution to a concrete case. Since, in Kaufmann's opinion, law does not exist apart from the process of its realisation, an answer to the question about the manner of realisation of law is of fundamental significance to answering the question: "What is law?" and to the explanation of the question about the ontological grounding of law, which is, as well, the foundation of justice. The proper solution has to take into account the moment of "non-dispositive" content of law; its positiveness understood as the reality and, at the same time, it has to point to the principles of the historical transformation of the content. Law, in the primary meaning of the word, always pertains, in Kaufmann's opinion, to a concrete case. A legal norm is solely the "possibility" of law and the entirely real law is ipsa res iusta, that which is just in a given situation. Determination of what is just takes place in a certain type of process performed by a judge (or by man confronted with a choice). Kaufmann aims to reconstruct this process. A question about the ontological foundation of law is a question about the ontological foundations of this process. In the analyzed theory it is formulated as a question about the transcendental conditions, necessary for the possibility of the occurrence of the process: how the reality should be thought to make possible the reconstructed process of the realisation of law. Kaufmann rejects the model for finding a concrete solution based on simple subsump¬tion and proposes a model in which concrete law ensues, based on inference by analogy, through the process of "bringing to conformity" that which is normative with that which is factual. Kaufmann distinguishes three levels in the process of the realisation of law. On the highest level, there are the fundamental legal principles, on the second legal norms, on the third — concrete solutions. The fundamental principles of law are general inasmuch as they cannot be "applied" directly to concrete conditions of life, however, they play an important part in establishing norms. A judge encounters a concrete situation and a system of legal norms. A life situation and norms are situated on inherently different levels of factuality and normativeness. In order to acquire a definite law both a norm (system of norms) and a life situation (Lebenssachverhalt) should undergo a kind of "treatment" which would allow a mutual conformity to be brought to them. Legal norms and definite conditions of life come together in the process of analogical inference in which the "factual state" ("Tatbestand") — which represents a norm, and in the "state of things" ("Sachverhalt") — which represents a specific situation are constructed. A "factual state" is a sense interpreted from a norm with respect to specific conditions of life. The "state of things" is a sense constructed on the basis of concrete conditions of life with respect to norms (system of norms). Legal norms and concrete conditions of life meet in one common sense established during the process of realisation of law. Mutatis mutandis the same refers to the process of composition of legal norms: as the acquisition of concrete law consists in a mutual "synchronization" of norms and concrete conditions of life, so acquisition of legal norms consists of bringing to conformity fundamental principles and possible conditions of life. According to Kaufmann, both of these processes are based on inference through analogy. As this inference is the heart of these processes it is simultaneously a foundation finding just law and justice. How does Kaufmann understand such an inference? As the basis for all justice he assumes a specifically interpreted distributive justice grounded on proportionality. Equality of relations is required between life conditions and their normative qualification. Concrete conditions of life are ascribed normative qualification not through simple application of a general norm. More likely, when we look for a solution we go from one concrete normative qualified case to another, through already known "applications" of norms to a new "application". The relation between life conditions and their normative qualifica¬tion has to be proportional to other, earlier or possible (thought of) assignments of that which is factual to that which is normative. Law as a whole does not consist of a set of norms, but only of a unity of relations. Since law is a, based on proportion, relative unity of a norm and conditions of life, in order to explain law in philosophical manner, the question about ontological base of this unity has to be asked. What is it that makes the relation between a norm and conditions of life "non-dispositive"? What is the basis for such an interpretation of a norm and case which makes it possible to bring a norm and conditions of life into mutual "conformity"? This is a question about a third thing (next to norms and conditions of life), with respect to which the relative identity between a norm and conditions of life occurs, about the intermediary between that which is normative and that which is factual and which provides for the process of establishing of norms, as well as, finding solutions. It is the "sense" in which the idea of law or legal norm and conditions of life have to be identical to be brought to mutual "conformity". In Kaufmann's opinion such a sense is nothing else but the "nature of things" which determines the normative qualification of the reality. Since establishment of this "sense" appears to be "non-dispositive" and controlled inter-subjectively (namely, other subjects will reach a similar result) so, in conformity with the convergent concept of truth, the "nature of things" must be assigned a certain ontological status. According to Kaufmann this is a real relation which occurs between being and obligation, between the conditions of life and normative quality. However, it should be underlined that from the point of view of the analyzed system the "nature of things" is a correlate of constructed sense, a result of a construction which is based on the principle of consistent understanding of senses ("non-normative" and "normative") and is not a reality which is transcendent against the arrangement of senses. In Kaufmann's theory, inference from analogy appears to be a process of reshaping the concepts (senses) governed by tendency to understand the contents appearing in relations between that which is factual and that which is normative in a consistent way. The analogical structure of language (concepts) and recognition of being as composed of an essence and existence is an indispensable requirement for the possibility of the realisation of law, based on specifically understood inference from analogy. It is necessary to assume a moment of existence without content which ensures unity of cognition. Existence emerges thus as a condition of the possibility of cognition. According to Kaufmann, the "nature of things" is the heart of inference through analogy and the basis for establishment of finding of law. Inference from the "state of things" to a norm or from a norm to the "state of things" always means inference through the "nature of things". The "nature of things" is the proper medium of objective legal sense sought in every cognition of law. In Kaufmann's view, the question whether the "nature of things" is ultima ratio of interpretation of law or is only a means of supplement gaps in law or whether it is one of the sources of law, is posed wrongly. The "nature of things" serves neither to supplement the gaps nor is it a source of law as, for example, a legal norm may be. It is a certain kind of "catalyst" necessary in every act of making law and solving a concrete case. Owing to "nature of things" it is possible to bring to a mutual conformity the idea of law and possible conditions of life or legal norms and concrete conditions of life. In Kaufmann's conception the "nature of things" is not yet the ultimate basis for understanding the "non-dispositiveness" of law. The relation between obligation and being is determined in the process of the realisation of law. Both the process itself and that which is transformed in this process are given. A question about the ontological bases of "material" contents undergoing "treatment" in the process of the realisation of law and about being which is the basis of regularity of the occurrence of the process arises. Only this will allow an explanation that the result of the process is not optional. Thus, a question about reality to which law refers and about the subject realising the law has to be formed. To this, Kaufmann gives the following answer: that which is missing is man but not "empirical man" but man as a "person". A "person" understood as a set of relations between man and other people and things. A "person" is the intermediary between those things which are different — norm and case are brought to conformity. A "person" is that which is given and permanent in the process of the realisation of law. It determines the content of law, is "subject" of law; this aspect is described by Kaufmann as the "what" of the process of realisation of law. A "person" consists of precisely just these relations which undergo "treatment" in the process. On the other hand, a "person" is "a place" in which the processes of realisation of law occur, it is the "how" of normative discourse, a "person" is that which determines the procedure of the process, being "outside" of it. This aspect of a "person" is connected with the formal moment of law. A "person" being, at the same time, the "how" and the "what" of the process of the realisation of law, is also, to put it differently, a structural unity of relation and that which constitutes this relation (unity of relatio and relata). According to this approach a "person" is neither an object nor a subject. It exists only "in between". It is not substance. Law is the relation between being and obligation. That which is obligatory is connected with that which is general. That which is general does not exist on its own, it is not completely real. Accordingly, a "person" as such is also not real. It is relational, dynamic and historical. A "person" is not a state but an event. In Kaufmann's opinion, such a concept of a "person" helps to avoid the difficulties connected with the fungibility of law in classical legal positivism. A "person" is that which is given, which is not at free disposal and secures the moment of "non-dispositiveness" of law. Kaufmann concludes: "The idea (»nature«) of law is either the idea of a personal man or is nothing". Theory points at the structure of realising law and explains the process of adoption of general legal norms for a concrete situation. The analysis has shown however, that in this theory a satisfactory answer to the question about the ultimate foundations of law is not given. It seems that in the analyzed theory the understanding of human being takes place through understanding of law. What is good for man as a "person", what is just, what a "person" deserves may be determined only against the existing system of law. A "per¬son" adopted as a basis of law is the reality postulated in the analysis of the process of the realisation of law. It is a condition of possibility of this process ( explaining, on one hand, its unity and, on the other hand, the non-dispositive moments stated in this process). A "person" in the discussed theory is entirely defined by the structure of law, it can be nothing more than that which is given in law, what law refers to, what law is about. Being, which is a "person", is constituted by relations between people and objects, the relations which are based on fundamental links between norms and conditions of life established in a process of bringing them to conformity. It has to be assumed that man as a "person" is a subject of law only as far as realising law "treats" given senses according to their current configuration. The system of law is a starting point and it describes in content what man is as a "person". Moreover, being a "person" is the condition for entering legal relations. Consistently, Kaufmann writes that "empirical man" is not the subject of law, man is not "out of nature" a "person". People become "persons" due to the fact that they acknowledge each other as "persons" — acknowledging, at the same time, law. This acknowledgement is a con¬dition of existence, of the possibility of the occurrence of process of realisation of law and of constituting legal relations which ultimately constitute a "person". Kaufmann assumes, that law tends towards a moral aim: it may and must create an external freedom, without which the internal freedom to fulfil moral obligations cannot develop. However, this postulate is not based on the necessary structure of human being. From the point of view of his system, it is nothing more than only a condition for the possibility of the occurrence of the process of the realisation of law — lack of freedom would destroy the "how" of this process. Thus, the postulate to protect the freedom of personal acts has to be interpreted, in accordance with the analyzed theory, as a postulate, the fulfilment of which aims ultimately at the accomplishment of the very same process of realisation of law itself and not the realisation of a given man. Kaufmann considers a "person" to be an element which unites the system of law as a whole. Law is a structure of relations, which are interdependent and inter-contingent. Consequently, a "person" which is to form the ontological basis of law has to be entity consisting of all relations. Being also the "how" of the process of realisation of law, if a "person" is to warrant its unity, it has to be a common source for all procedures. Hence, a single "person" would constitute a subject of law. Man appears to be only a moment of a certain entirety, realisation of which should be an aim of his actions. Law, creating a "person" as an object and subject of law becomes a primary entity. In the analyzed theory, the basis for determination of aims which law sets to man is not the allocation of man-subject to something which improves him but rather, such relation is only just constituted by law. A question appears, why should aims set in law also be the aims of "empirical man"? Why is this "empirical man" to be punished in the name of a "person" understood in such a way? If, however, it is assumed that what is man is determined by a system which is superior to him, then man has to be understood only as a part of a whole and there are no grounds to prohibit istrumental treatment of man and so the road to all aspects of totalitarianism might be opened. A problem of the application of created theory to the reality arises, the reality which the theory pretends to explain. Ultimately in his theory Kaufmann does not give any systemic grounds for a radical questioning of the validity of any legal norms. Every new norm becomes an equal part of system of norms. It is only its interpretation and application to given conditions of life that may be disputable, however, this refers to all norms without exception. Cohesive inter-pretation of norms and applications is necessary and sufficient for the acquisition of just law. New norms have to be interpreted in the light of others, correspondingly, the other norms require reinterpretation in the light of the new ones. Contradiction in interpretation of a norm does not form a basis for questioning norms but may serve only to question the manner of their interpretation (understanding). Therefore, no grounds exist to assume any legal norm as criminal or unjust, and in consequence, to question any consistently realised system based on formally, properly established norms, as "legal lawlessness". As law and a "person" do not exist without the process of realisation of law, the role of legal safety becomes crucial as the condition for the possibility of the occurrence of the process of realisation of law. Denying legal safety would be tantamount to negation of law in general (also of moral law) as negation of safety takes away, at the same time, the basis for occurrence of the process of realisation of law. Moreover, any lack of legal safety would also mean lack of a basis for the existence of man as a "person". Kaufmann's thesis, that civil disobedience is legalized only when it has a chance to lead to success, consistent with his concept of the foundations of law, seems to point directly to conclusions which deny the facts taken under consideration and doubtlessly Kaufmann's own intentions, since it would have to be assumed that accordingly there are no grounds to question a legal system in force based on violence which secures its operation. Force finally seems to determine which one of the mutually irreconcilable normative systems constitute law and which does not. A legitimate position is one which leads to success, it is the weaker system which is negated. If so, then basically violent imposition of law is not an act directed against the law in force but, to the contrary, realisation of law. In the context of the new system the former system of law may be talked about as unjust solely in the sense of being incapable of being consistently united with the new. However, at the base, ultimately, lies force which reaffirms differences and excludes from the process of realisation of law certain norms and their interpretations. Kaufmann was aiming at grounding of that which is "non-dispositive" in a certain given framework of interpretation. Nevertheless, he does not provide foundations for the understanding of phenomena, which he undertakes to explain at a point of departure. Instead of explaining them the theory negates the possibility of their existence. The reality postulated in regard to "non-dispositive" moments of the reconstructed process of acquiring law consist of a specifically understood "person", which appears in Kaufmann's conceptions as a condition of the possibility of the realisation of law. According to this approach understanding of a "person" may be only a function of law. To understand "legal lawlessness" and foundations of justice it is necessary to look for such theory of law in which understanding of man as a "person" and being is not a function of understanding of law (in which a "person" is not only a condition for possibility of reconstructed process of realisation of law; for possibility of cognition processes). It seems necessary to start from theory of being and a "person" based on broader experience than the one assumed by Kaufmann and reconstruct the ontological foundations of the process of realisation of law only in such perspective. Kaufmann points out that that to which law refers is ipsa res iusta a concrete relation of man to other people and things. This relation, in his theory, appears to be basically only just constituted by law (normative senses "applied" to conditions of life). Therefore, understanding the relation between a given man and other people and things which constitute the aim of his actions, that is understanding of good, is enacted against the background of constitution of senses; constitution which is a result of a process aiming towards consistent understanding of particular contents (of nor¬mative and non-normative senses). "Being" is secondary towards constructed senses it is only their correlate. The primary relation consists of relation of a man to law (system of norms), while the secondary relation is one of man to something which is the aim of his action (relation between man and good). Considering such approach it is difficult to envision a satisfying answer to the fundamental question: why does law put concrete man under any obligation to obey it? The source of this problem can be seen in reduction of the base for understanding good to content of obligation formulated in auto-reflection. Such reduction seems to be a consequence of Kaufmann's adoption of "convergent concept of truth" and in con¬sequence his recognition of indirect, essentialistic grasp of reality formulated in concepts as the basic and only foundation of theory of being and of law. In view of such an approach, analogy of law, concepts and being is the condition for the possibility of the process of transformation of senses which aims at consistent interpretation of all law. Existence is postulated with respect to the possibility of unity of experience and cognition. However, also a different approach to understanding of the problem of being and good is possible. In spontaneous cognition being is affirmed, first of all, not as a certain, non-contradictory, determined content, but as something existing. Together with a cer¬tain content (passed indirectly through notions) existence of being is co-given. The basis for unity of being is not formed by the consistence of content, as it is in the case of the theories departing from the analysis of cognition processes, but by an act of existence realising content (essence). Such an approach makes it also possible to go beyond the convergent concept of truth. It is worth mentioning that allocation of an agent to good is realised not only by the content of duty. A statement that something is good is primary with respect to determination of this good in content. The recognised good always bears some content, however, there are no reasons to base the concept of good exclusively on indirect, formulated in concepts cognition. As primary, can be adopted the relation of man to good and not of man to law. Determination in content appears to be only an articulation of aspectual cognition of being, as an object of action. In such a case the basis for relative unity of norm and conditions of life is not the "nature of things" understood as correlate of sense but it is relation to good based on internal constitution of man as potential, not self-sufficient being. It does not mean, that the moments of the process of realisation of law singled out by Kaufmann are not important to determination of what is just. He, quite rightly, points to significant role played by norms in the evaluation of concrete situations, in man's search for closer specification in content of good innate to him. The structure of process of determining law for a concrete situation, to a great degree corresponds to the processes of determining law which take place not only in the legal sciences. Kaufmann's analyses of the process of realisation of law show the complexity of the structure of these processes and point towards important moments allowing a better understanding of law and man. Nevertheless, these analyses cannot be a basis for construction of philosophical theory of law, theory which hopes to point out the ultimate, ontological foundations for understanding law. Kaufmann's results may become fully valid only in a more general perspective including broader experience at the point of departure. (shrink)

The language of balancing is pervasive in constitutional rights jurisprudence around the world. In this book, Jacco Bomhoff offers a comparative and historical account of the origins and meanings of this talismanic form of language, and of the legal discourse to which it is central. Contemporary discussion has tended to see the increasing use of balancing as the manifestation of a globalization of constitutional law. This book is the first to argue that 'balancing' has always meant radically different things in (...) different settings. Bomhoff uses detailed case studies of early post-war US and German constitutional jurisprudence to show that the same unique language expresses both biting scepticism and profound faith in law and adjudication, and both deep pessimism and high aspirations for constitutional rights. An understanding of these radically different meanings is essential for any evaluation of the work of constitutional courts today. (shrink)

Courts frequently engage in the weighing of competing values; perhaps most obviously, such balancing constitutes an integral aspect of proportionality analysis in many states’ constitutional law. However, such balancing raises a difficult theoretical question: What does it mean that one value “outweighs” another in any particular case? If the values at issue are incommensurable — as they often will be — such balancing may appear to break down. As Justice Scalia has stated, balancing in the presence of incommensurable values (...) “is more like judging whether a particular line is longer than a particular rock is heavy.” It may appear that if a judge is asked in a particular case to decide, for example, whether a state interest is sufficiently strong to justify the limitation of a constitutional right, he will be forced to a) either abandon the notion of a genuine plurality of values, or b) make an arbitrary decision. This article argues that neither of these options need be accepted and that rational choice is indeed possible in the presence of incommensurable values. Specifically, it contends that the Nash bargaining solution provides a means, at least in certain circumstances, of rationally understanding and undertaking the weighing of distinct and mutually irreducible values which adjudication frequently requires. The Nash framework can both elucidate proportionality analysis by providing a social choice-based framework for understanding the structure of proportionality analysis and also justify proportionality analysis by demonstrating that the weighing of competing values is not necessarily mere judicial hand-waving. (shrink)