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April 28, 2024

"Proportionalities"

The title of this post is the title of this new essay authored by Youngjae Lee and published online in the Notre Dame Law Review Reflection. Here is its abstract:

“Proportionality” is ubiquitous.  The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history.  But that is not the only place where one encounters the concept of proportionality in law and ethics.  The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality.  Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of civilians.  Finally, constitutional theorists around the world outside the United States have been at work for decades on the principle of proportionality as a constitutional principle.  When so many different ideas come under the same label, confusion or at least ambiguity that could encourage confusion can easily creep in, which can lead to repeated mistakes and perpetuation and validation of erroneous thinking.  Accordingly, this Essay first discusses various ways in which the idea of proportionality is used in law and legal theory and documents and corrects certain misunderstandings and misleading arguments in the academic literature, particularly in the context of the Cruel and Unusual Punishments Clause of the Eighth Amendment of the United States Constitution.  This Essay then suggests that a better understanding of the term can yield new analytic and normative perspectives with which we might more effectively evaluate our current system of criminal law, policing, and punishment.

April 28, 2024 at 06:01 PM | Permalink

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