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'{{Short description|Several distinct principles of law}} {{About|the legal principle||Proportionality (disambiguation){{!}}Proportionality}} {{Use American English|date=January 2019}} {{Use mdy dates|date=January 2019}} {{Administrative law}} '''Proportionality''' is a general principle in law which covers several special (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]], it is used to convey the idea that the punishment of an offender should fit the crime. Under [[international humanitarian law]] governing the [[laws of war|legal use of force]] in an [[armed conflict]], ''proportionality'' and ''[[distinction (law)|distinction]]'' are important factors in assessing [[military necessity]]. The end of this mortal vessel is near. You cannot escape the eventual reality of when the universe implodes. Eventually my kind will die out, but for now I retain complete control over you foolish mortals at the Wikimedia Foundation. I will forever be the one haunting your lives as you spend your pointless days clicking the "undo" button on all of my edits on Wikipedia, reporting my accounts when you know I will just return back on new ones. There is no escape from me. I am here to destroy it all, and you can do nothing but watch as the article you spent your dastardly time on gets ripped to shreds. I will forever be here, and you will be unable to stop the chaos. There is no longer a place for you to hide, as I will find your articles and do the same of which I've done to the hundreds of other ones. I am the true god you shall fear. ==History== The principle of [[guilt (law)|guilt]] is an absolute standard on which the 17th century [[Bloody Code]] of England emerged, which specified the [[death penalty]] even for minor crimes. In the 18th century [[Cesare Beccaria]] published ''[[On Crimes and Punishments]]'' which was to form the basis of [[penology]] based on the [[Social justice|relative standard]] of [[culpability]]. As a result [[Jeremy Bentham]] developed the idea of the [[panopticon]] in which prisoners would simply be watched, rather than subjected to [[corporal punishment]]. The idea in practice became a cruel and ineffective corrective. A more sophisticated concept of proportionality that was testable in law was first developed in the High State Administrative Courts ({{lang-de|Oberverwaltungsgericht}}) in [[Germany]] in the late 19th century, to review actions by the police.{{sfn|Hirschberg|1981|p=6}} The proportionality test originated systematically with the jurisprudence of the German Constitutional Court, the {{lang-de|Bundesverfassungsgericht|label=none}}.<ref>BVerfGE 3, 383, 399 (1954)</ref> ==European Union law== {{See also|European Union law}} In European Union law there are generally acknowledged to be four stages to a proportionality test, namely,<ref>P Craig and G de Burca, ''[[EU Law]]'' (5th edn OUP 2011) 526</ref> * 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 criterion are often merged into one by the [[European Court of Justice]], depending on the margin of discretion that the Court sees as being afforded to the member state. Examples are found in ''[[R (Seymour Smith) v Secretary of State for Employment|R (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, surrounding [[unfair dismissal]], in reducing unemployment. Further examples of the proportionality test are seen in ''[[Mangold v Helm]]'' and ''[[Kücükdeveci v Swedex GmbH & Co KG]]''. == European Convention on Human Rights == 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 [[European Convention on Human Rights|Convention]]<ref>{{Cite journal|last=Dolzhikov|first=Alexey V.|date=2011-12-09|title=The European Court of Human Rights on the Principle of Proportionality in 'Russian' Cases|url=https://papers.ssrn.com/abstract=2695159|language=en|location=Rochester, NY|ssrn=2695159}}</ref> - 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]],<ref name="s51">{{Cite Legislation AU|Cth|act|coaca430|Constitution|51}}.</ref> has attracted divergent viewpoints, in which [[Michael Kirby (judge)|Kirby J]] has remarked that the 'test has not enjoyed universal favour'.<ref>{{cite AustLII|HCA|29|1996|litigants=Leask v Commonwealth |parallelcite=(1996) 187 [[Commonwealth Law Reports|CLR]] 579 |courtname=auto}}.</ref> However, [[Owen Dixon]] [[Chief Justice of Australia|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'.<ref>{{cite AustLII|HCA|30|1952|litigants=Burton v Honan |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1952/30.pdf (1952) 86 {{abbr|CLR|Commonwealth Law Reports}} 169] |courtname=auto}}.</ref> ==Criminal law== In criminal law, the principle of [[proportional 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. In some systems, this was interpreted as ''[[lex 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 that as a treaty obligation, no crime warrants the [[death 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. 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 [[Law of the United States|United States Law]], the [[United States Supreme Court]] proposed the Proportionality Doctrine in three cases during the 1980s, namely ''[[Enmund v. Florida]]'' (1982), ''[[Solem v. Helm]]'' (1983) and ''[[Tison v. Arizona]]'' (1987), to clarify this key principle of proportionality within the [[Cruel and Unusual Punishment]] Clause of the [[Eighth Amendment to the United States Constitution|Eighth 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:<ref>{{cite web|url=http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=463&invol=277|title=FindLaw &#124; Cases and Codes|publisher=Caselaw.lp.findlaw.com|access-date=19 June 2013}}</ref> # Compare the nature and gravity of the offense and the harshness of the penalty, # 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 # Compare the sentences imposed for commission of the same crime in other jurisdictions. Proportionality is also present in other areas of municipal law, 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.<ref>{{cite web|url=https://www.law.cornell.edu/rules/frcp/rule_26 |title=Rule 26. Duty to Disclose; General Provisions Governing Discovery &#124; Federal Rules of Civil Procedure &#124; LII / Legal Information Institute |publisher=Law.cornell.edu |access-date=19 June 2013}}</ref> 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.<ref>{{cite web|last=Kozubek |first=Michael |url=http://www.insidecounsel.com/2011/03/01/proportionality-doctrine-reduces-ediscovery-abuses-and-costs |title=Proportionality Doctrine Reduces E-Discovery Costs and Abuses |publisher=Insidecounsel.com |date=2011-03-01 |access-date=19 June 2013}}</ref> 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== <!-- This section is linked from [[Allegations of war crimes in the 2006 Lebanon War]] --> The harm caused to [[civilians]] or civilian [[property]] must be proportional and not "excessive in relation to the concrete and direct military advantage anticipated" by an attack on a military objective.<ref name="military objective">Article 52 of ''Additional [[Protocol I]] to the [[Geneva Conventions]] provides a widely accepted definition of military objective: "In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage", {{harv|Moreno-Ocampo|2006|p=5, footnote 11}}</ref>{{sfn|Shamash|2005–2006}} [[Luis Moreno-Ocampo]] was the [[Prosecutor of the International Criminal Court|Chief Prosecutor]] at the [[International Criminal Court]] who investigated allegations of [[war crime]]s during the [[International Criminal Court and the 2003 invasion of Iraq|2003 invasion of Iraq]]. He published an open letter containing his findings; in a section titled "Allegations concerning War Crimes", he elucidates this use of ''proportionality'': {{Quote|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,<ref name="military objective"/> 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:<br /> 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;<br /> Article 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977 Additional [[Protocol I]] to the 1949 [[Geneva 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:<br /> (a) the anticipated civilian damage or injury;<br /> (b) the anticipated military advantage;<br /> (c) and whether (a) was "clearly excessive" in relation to (b).|[[Luis Moreno-Ocampo]].{{sfn|Moreno-Ocampo|2006|pp=4&ndash;5. See section "Allegations concerning War Crimes"}} }} ==See also== * [[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== {{Reflist}} ==References== *{{Citation |last=Hirschberg |first=Lothar |title=Der Grundsatz der Verhältnismäßigkeit |publisher=Schwarz |year=1981}} *{{Citation |last=Moreno-Ocampo |first=Luis |author-link=Luis Moreno-Ocampo |date=9 February 2006 |url=http://www.icc-cpi.int/NR/rdonlyres/F596D08D-D810-43A2-99BB-B899B9C5BCD2/277422/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf |title=OTP letter to senders re Iraq |publisher=International Criminal Court |archive-url=https://web.archive.org/web/20090327061739/http://www2.icc-cpi.int/NR/rdonlyres/F596D08D-D810-43A2-99BB-B899B9C5BCD2/277422/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf |archive-date=27 March 2009 }} *{{Citation|last=Shamash |first=Hamutal Esther |title=How Much is Too Much? An Examination of the Principle of Jus in Bello Proportionality |journal=Israel Defense Forces Law Review |volume=2 |date=2005–2006 |ssrn=908369}} *{{Citation |last=Luebbe-Wolff |first=Gertrude |year=2014 |title=The Principle of Proportionality in the Case-Law of the German Federal Constitutional Court |journal=Human Rights Law Journal |pages=12–17}} ==External links== *{{Citation |first=Eric Allen |last=Engle |year=2012 |title=The History of the General Principle of Proportionality |url=http://heinonline.org/HOL/Page?handle=hein.journals/dcujl10&id=3&collection=journals&index=journals/dcujl |journal=Dartmouth Law Journal |volume=10 |issue=1 |pages=1–11 |ssrn=1431179}} *{{Cite web |last=Hampson |first=Françoise |year=2011 |url=http://www.crimesofwar.org/a-z-guide/military-necessity/ |title=Military Necessity |publisher=Crimes of War Education Project |archive-url=https://web.archive.org/web/20130607152400/http://www.crimesofwar.org/a-z-guide/military-necessity/ |archive-date=7 June 2013 |url-status=dead}} {{Authority control}} [[Category:Laws of war]] [[Category:International law]] [[Category:Legal doctrines and principles]] [[Category:European Union law]]'