Proportionality (law)

Proportionality is a general principle in criminal law used to convey the idea that the severity of the punishment of an offender should fit the seriousness of the crime. 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 to assist in discerning the correct balance between the sanction or punishment imposed and the severity of the prohibited act. Under international humanitarian law governing the legal use of force in an armed conflict, proportionality and distinction are important factors in assessing military necessity. The principle of 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 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 (German: Oberlandesgericht) in Germany in the late 19th century, to review actions by the police. The proportionality test originated systematically with the jurisprudence of the German Constitutional Court, the Bundesverfassungsgericht. In European Union law there are generally acknowledged to be four stages to a proportionality test, namely, 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, 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.