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)

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)

Proportionality—the idea that causes are neither too general nor too specific for their effects—seems to recommend implausibly disjunctive causes (McGrath, 1998 ; Shapiro & Sober, 2012 ; Franklin-Hall, 2016 ). I argue that this problem should be avoided by appeal to the notion of cohesion. I propose an account of cohesion in terms of the similarity structure of property-spaces, argue that it is not objectionably mysterious, and that alternative approaches—based on naturalness, interventionism, and contrastivism—are inadequate without appeal to it. (...) In an appendix, I show how my proposal can be perspicuously formalized by adapting structural equation models. (shrink)

According to the so-called 'proportionality principle', causes should be proportional to their effects: they should be both enough and not too much for the occurrence of their effects. This principle is the subject of an ongoing debate. On the one hand, many maintain that it is required to address the problem of causal exclusion and take it to capture a crucial aspect of causation. On the other hand, many object that it renders accounts of causation implausibly restrictive and often (...) reject the principle wholesale. I argue that there is exaggeration on both sides. While one half of the principle is overly demanding, the other half is unobjectionable. And while the unobjectionable half does not block exclusion arguments on its own, it provides a nuanced picture of higher-level causation, fits with recent developments in philosophy of causation, and motivates adjustments to standard difference-making accounts of causation. I conclude that at least half of the proportionality principle is worth taking seriously. (shrink)

In ‘Proportionality in Causation, Part I: Theories’, I presented various ways of understanding the idea that causes which are ‘proportional’ to their effects are in some sense preferable. In this companion article, I discuss the principal applications of the resulting theories of proportionality, and the challenges they face.

Supporters of the autonomy of higher-level causation (or explanation) often appeal to proportionality, arguing that higher-level causes are more proportional than their lower-level realizers. Recently, measures based on information theory and causal modeling have been proposed that allow one to shed new light on proportionality and the related notion of specificity. In this paper we apply ideas from this literature to the issue of higher vs. lower-level causation (and explanation). Surprisingly, proportionality turns out to be irrelevant for (...) the question of whether higher-level causes (or explanations) can be autonomous; specificity is a much more informative notion for this purpose. (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'.

A cause is proportional to its effect when, roughly speaking, it is at the right level of detail. There is a lively debate about whether proportionality is a necessary condition for causation. One of the main arguments against a proportionality constraint on causation is that many ordinary and seemingly perfectly acceptable causal claims cite causes that are not proportional to their effects. In this paper, I suggest that proponents of a proportionality constraint can respond to this objection (...) by developing an idea that is present in Yablo’s early work on proportionality, but which has strangely been ignored by both Yablo and others in the subsequent debate. My suggestion is that proportionality—and, indeed, causation itself—is relative to a domain of events. At the metaphysical level, this means that the causal relation has an extra relatum—namely, a domain of events. At the level of language, it introduces a new way in which causal claims are context-sensitive: what is expressed by a causal claim depends on the contextually relevant domain of events. As I argue, this suggestion allows us to accommodate the truth of ordinary causal claims while extending the explanatory benefits of a proportionality constraint. (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)

A much-discussed idea in the causation literature is that it is preferable to invoke causes which are proportional to—neither too general nor too specific for—the effect. This article presents various ways of understanding this idea. In what sense are such causal claims ‘preferable’? And what is it for one event to be ‘proportional’ to another? In a companion article, ‘Proportionality in Causation, Part II: Applications and Challenges’, I discuss the principal applications of the resulting theories of proportionality, and (...) the challenges they face. (shrink)

In this article, I consider the permissibility of forming defensive alliances, which is a neglected topic in the contemporary literature on the ethics of war and peace. Drawing on the jus ad bellum criterion of proportionality in just war theory, I argue that if permissible defensive force requires that its expected harms must be counterbalanced by its expected goods, then, permissible defensive alliance formation seems to also require that its expected harms must be counterbalanced by its expected goods, as (...) the latter can result in much the same consequences as the former. Moreover, due to the incommensurability of values in play when making proportionality judgments, I argue for a value pluralist understanding of the criterion. On this view, defensive alliance formation is proportionate if the expected gains in certain values (goods) intuitively justify the expected losses in others (harms) when compared to the alternative expected value trade-offs of not allying. To explore the implications of my theoretical claims I consider them in relation to John Mearsheimer’s influential account of the causes of the Russo-Ukrainian War. On this account, the West’s strategy to assimilate Ukraine and Ukraine’s pursuit of NATO membership post-annexation of Crimea were disproportionate because the expected harms were unjustified when compared to the alternative expected goods and harms of forgoing Ukrainian membership of NATO. This does not imply that Russia’s aggression is just, but it does imply that the West and Ukraine are partially responsible for the war and that they acted impermissibly in attempting to expand/join NATO. (shrink)

This article considers the proportionality requirement of the self-defense justification. It first lays bare the assumptions and the logic—and often illogic—underlying very strict accounts of the proportionality requirement. It argues that accounts that try to rule out lethal self-defense against threats to property or against threats of minor assault by an appeal to the supreme value of life have counter-intuitive implications and are untenable. Furthermore, it provides arguments demonstrating that there is not necessarily a right not to be (...) killed in defense against theft or minor assaults. While there is a general moral right of self-defense and a general right to life, the scope of these rights depends on certain social facts that—even within a liberal framework—can differ from one society to another. Moreover, the proportionality of self-defense does not depend on the rights of the aggressor alone, but also on a precautionary rule, shaped by the balance of interests of the society in question and aimed at protecting innocent people and other social interests. This rule can protect an aggressor even in cases where he does not have the right to such protection. (shrink)

A statement of the form ‘C caused E’ obeys the requirement of proportionality precisely when C says no more than what is necessary to bring about E. The thesis that causal statements must obey this requirement might be given a semantic or a pragmatic justification. We use the idea that causal claims are contrastive to criticize both.

Proportionality in the resort to war determines a limit to the amount of harm it can be permissible to cause for the sake of achieving a just cause. It seems to follow that if a war has caused harm up to that limit but has not achieved the just cause, it should be terminated. I argue, however, that this is a mistake. Judgments of proportionality are entirely prospective and harms suffered or inflicted in the past should in general (...) be ignored. Yet past losses that could be partially redeemed by the achievement of the just cause may be an exception. (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 ...

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.

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)

If counterfactual dependence is sufficient for causation and if omissions can be causes, then all events have many more causes than common sense tends to recognize. This problem is standardly addressed by appeal to pragmatics. However, Carolina Sartorio [2010] has recently raised what I shall argue is a more interesting problem concerning omissions for counterfactual theories of causation—more interesting because it demands a more subtle pragmatic solution. I discuss the relationship between the idea that causes are proportional to their effects, (...) the idea that causation is contrastive, and the question of the dimensions along which causal explanations should be evaluated with respect to one another. (shrink)

A basic principle in sentencing offenders is proportionality. However, proportionality judgments are often left to the discretion of the judge, raising familiar concerns of arbitrariness and bias. This paper considers the case for systematizing judgments of proportionality in sentencing by means of an algorithm. The aim of such an algorithm would be to predict what a judge in that jurisdiction would regard as a proportionate sentence in a particular case. A predictive algorithm of this kind would not (...) necessarily undermine justice in individual cases, is consistent with a particularistic account of moral judgment, and is attractive even in the face of uncertainty as to the legitimate purposes of punishment. (shrink)

The principle that a sentence should be proportionate to the seriousness of the offence remains at the centre of penal practice and scholarly debate. This volume explores highly topical aspects of proportionality theory that require examination and further analysis. von Hirsch and Ashworth explore the relevance of the principle of proportionality to the sentencing of young offenders, the possible reasons for departing from the principle when sentencing dangerous offenders, and the application of the principle to socially deprived offenders. (...) They examine the claim that the principle tends to be associated with greater severity in sentencing, and explore the relevance of penance and of restorative justice to proportionality theory. Their examination of arguments and counter-arguments culminates in a re-statement of the main criteria for proportionate sentencing.The authors are well known for their previous writings on proportionality theory, and this volume broadens the theory to deal with important contemporary issues in crime and punishment. (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)

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)

Philosophers writing about proportionality in self-defense and war will often assume that defensive agents have full knowledge about the threat that they face and the defensive options available to them. But no actual defensive agents possess this kind of knowledge. How, then, should we make proportionality decisions under uncertainty? The natural answer is that we should move from comparing the harm we will do with the good we will achieve to comparing expected harm with expected good. I argue (...) that this simple calculation is flawed, and I begin to develop a more sophisticated account of “subjective proportionality.”. (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)

In the course of commenting on the third chapter of Frances Kamm’s Ethics for Enemies, this article proposes an analysis of the notion of a just cause for war, according to which there is a just cause only when those whom it is necessary to attack as a means of achieving some aim are potentially morally liable to be attacked. The remainder of the article then discusses issues of proportionality, particularly in relation to several distinct forms of moral justification (...) for harming or killing people. Among the central questions addressed is what the conditions are in which good effects of a war that are independent of the achievement of the just cause may count in determining whether the war would be proportionate. (shrink)

In this paper, I defend a deflationary account of proportionality, which suggests that proportionality does not explain anything valuable about a system of punishment. Proportionality, rather, is a conventional means for presenting judgments about whether punishment fits the crime. A system of punishment is proportionate to the degree that it coheres with widely shared norms about punishment. There are many reasons such coherence could be valuable, not all of which are retributive. Hence, while on a deflationary view (...) it may be important for a system of punishment to be proportionate, proportionality does not identify a uniquely important retributive value. I motivate the argument for a deflationary account of proportionality by canvassing some of the problems associated with both relative and absolute proportionality and examining how both legal theorists and courts have actually used the concept. I focus on the work of Doug Husak, and the jurisprudence of the Supreme Court of Canada. (shrink)

Just wars are supposed to be proportional responses to aggression: the costs of war must not greatly exceed the benefits. This proportionality principle raises a corresponding ‘interpretation problem’: what are the costs and benefits of war, how are they to be determined, and a ‘measurement problem’: how are costs and benefits to be balanced? And it raises a problem about scope: how far into the future do the states of affairs to be measured stretch? It is argued here that (...) weapons innovation always introduces costs, and that these costs cannot be determined in advance of going to war. Three examples, the atomic bomb, the AK-47 and the ancient Greek catapult, are given as examples. It is therefore argued that the proportionality principle is inapplicable prospectively. Some replies to the argument are discussed and rejected. Some more general defences of the proportionality principle are considered and also rejected. Finally, the significance of the argument for Just War Theory as a whole is discussed. (shrink)

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)

This paper offers a justification of the principle of military proportionality that is based in considerations of self-interest. By offering such a justification, I hope to vindicate the principle on the basis of the least controversial argument available. The war between Israel and Hezbollah in the summer of 2006 is used as a case study. Part 1 surveys recent work on military proportionality and suggests that the importance of this principle has increased in the age of asymmetrical warfare. (...) Part 2 considers and rejects the traditional realist concerns about proportionality. Part 3 offers a realist rationale for adhering to the principle. (shrink)

I come to grips with the deontological critique of constitutional proportionality that asserts that this doctrine ignores rights and slips into the utilitarian maximisation of societal interests. I...

Some collateral harms affecting enemy civilians during a war are agentially mediated – for example, the US-led invasion of Iraq in 2003 sparked an insurgency which killed thousands of Iraqi civilians. I call these ‘collaterally enabled harms.’ Intuitively, we ought to discount the weight that these harms receive in the ‘costs’ column of our ad bellum proportionality calculation. But I argue that an occupying military force with de facto political authority has a special obligation to provide minimal protection to (...) the civilian population. As a result, when an occupying military force collaterally enables a harm affecting the civilian population, the weight that the harm ought to receive in the ad bellum proportionality calculation is unaffected by the fact that the harm is agentially mediated – it ought to be weighed at least as heavily as those harms that the occupying force collaterally commits directly. As a result, satisfying the ad bellum proportionality constraint in wars of territorial occupation is more difficult than it has been thought. (shrink)

The purpose of this article is to make a rational reconstruction of the use of the proportionality test in contexts of judicial adjudication of constitutional social rights. This reconstruction will be developed in two stages. Firstly, I will deal with the question of whether the proportionality test in its variation by omission (that is, in cases of positive rights) exhibits or not a different structure with respect to its (better known and developed) variation by excess (that is, in (...) cases of negative rights). Secondly, I will describe the rules and forms of argumentation implied in the use of the proportionality test by omission, which constitute its respective sub-tests of suitability, necessity and proportionality stricto sensu. Lastly, I will present a brief summary. (shrink)

Mexico's pandemic management and the absence of measures have been harshly criticized as being disproportionate. This paper examines whether the proportionality principle was properly applied to Mexico's COVID-19 response and outlines three reasons against such an endeavor, namely (i) the content of “proportionate measures” remained insufficiently well defined, (ii) there were yet fundamental rights conflicts to resolve, and (iii) the situation was moreover characterized by epistemic uncertainty.

Proportionality matters. Intuitively, proportionality sets the ceiling on the amount of defensive violence that is permissible. A plausible view is that what justifies proportionality also justifies other defensive-violence requirements—for example, discrimination and necessity—and shows why other purported requirements are mistaken—for example, imminence. I argue that if defensive-violence proportionality is a part of moral reality, then there is a systematic justification of it. If there is a systematic justification of proportionality, then there is an adequate equation (...) for it. There is no adequate equation for proportionality. Hence, proportionality is not part of moral reality. As a result, non-consequentialism does not justify defensive violence. The last part of this paper briefly applies these findings to vaccine mandates. (shrink)

Some of the questions Professor Miller addresses are concerned with proportionality, a notion whose complexities are only beginning to be appreciated. My modest ambition in this comment is to try to sharpen these questions and provide some assistance in thinking about them.

When faced with multiple claims to a particular good, what does distributive justice require? To answer this question, we need a substantive moral theory that will enable us assign relative moral weights to the parties' claims. But this is not all we need. Once we have assessed the moral weight of each party's claim, we still need to decide what method of distribution to employ, for there are two methods open to us. We could take the winner-take-all approach, and award (...) the good to the party with the strongest claim. On the other hand, we could divide the good proportionally, according to the relative strength of each party's claim. Because the choice between these two methods of distribution can have a dramatic impact on the resulting pattern of distribution, the choice presents a question of justice. But this is a question of justice that is often overlooked. As a result, we currently employ the principle of proportionality far less often than justice actually requires. If we focus on the question of distributive method, however, we are not only better able to understand how certain reasons enter into our all-things-considered moral judgments, we are also able to explain some perplexing but common aspects of our moral beliefs: how rights can be said to have peremptory force, yet still be balanced against other important interests; how justice can sometimes require compromise, yet sometimes require victory; and how a moral theory can avoid being too demanding while still being demanding enough. Key Words: autonomy • equality • indivisibility • inviolability • weighted lotteries • rights. (shrink)

This article analyses the rationality of the principle of proportionality as a justificatory method for solving cases involving conflicts of constitutional principles. It addresses the “problem of comparability”: a set of arguments claiming that proportionalists fail to understand what happens when constitutional principles collide. The problem of comparability suggests that balancing cannot be done if some conflicts of constitutional principles are, in reality, cases of noncomparability, incommensurability, incomparability, or vagueness. In this article, I challenge the views of both proportionalists (...) and their skeptics. Against the skeptics, I argue that proportionality can survive the challenge posed by the problem of comparability. Against the proportionalists, I submit that proportionality cannot be understood as a system of tradeoffs between degrees of satisfaction of principles. If comparison among constitutional principles is to be rational, we need a different approach to normativity—one that allows for the possibility of parity. (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)

Political egalitarians tend to defend equal distributions of voting power at specific times, as in ‘one election, one vote’. Appealing as it is, the principle seems incompatible with distributing power proportionally to the stakes voters have at different elections, as in ‘one stake, one vote’. This article argues that the tension above stems from the temporal scope ascribed to political equality, as at specific moments of democratic decision-making instead of over entire lives. More specifically, ascribing a lifetime view to political (...) equality renders equality compatible with proportionality at different elections. I first show that storable votes differ from standard votes in their distinctive commitment to lifetime political equality. I then argue that storable voting schemes are compatible with three key reasons to value political equality: equal consideration of interests, relational equality, and non-domination. Finally, storable votes are also consistent with proportionality at specific times. I conclude that the neglected idea of lifetime political equality can, through storable votes, deliver proportionality without inequality. (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)

In this article I argue that revisionists in just war theory must further revise their proportionality principles. I show that on the revisionist view it is possible for a war to be proportionate,...

This paper reexamines the case for a proportionality constraint on causation. The general idea behind the proportionality constraint is that causes need the right amount of detail. The cause needs to be detailed enough to be sufficient for the effect yet general enough to be fully relevant to the effect. The case for the proportionality constraint mainly rests on some examples. Suppose we are searching for the cause of an injury: “being hit by a red bus” is (...) too detailed, “being hit” isn't detailed enough, but “being hit by a bus” is about right. This sort of example has undeniable intuitive appeal. However, this intuitive appeal needs to be examined with more care before jumping to conclusions about the metaphysics of causation and the mereology of causal relata. Here, I reexamine the case for a proportionality constraint on causation and compare several pragmatic explanations of our intuitions about Yablo’s examples, in particular a pragmatic explanation that notices the loose use in our naming of causal relata and a pragmatic explanation that appeals to a contrastivist account of causation. (shrink)

This essay focuses on proportionality stricto sensu as a consequential test of balancing. The basic balancing rule establishes a general criterion for deciding between the marginal benefit to the public good and the marginal limit to human rights. Based on the Israeli constitutional jurisprudence, this essay supports the adoption of a principled balancing approach that translates the basic balancing rule into a series of principled balancing tests, taking into account the importance of the rights and the type of restriction. (...) This approach provides better guidance to the balancer , restricts wide discretion in balancing, and makes the act of balancing more transparent, more structured, and more foreseeable. The advantages of proportionality stricto sensu with its three levels of abstraction are several. It stresses the need to always look for a justification of a limit on human rights; it structures the mind of the balancer; it is transparent; it creates a proper dialog between the political brunches and the judiciary, and it adds to the objectivity of judicial discretion. Proportionality stricto sensu however has it critics: some claim that it attempts to balance incommensurable items; others that balancing is irrational. The answer to the critics is that it is a common base for comparison, namely the social marginal importance and that the balancing rules—basic, principled, concrete—supply a rational basis for balancing. A democracy must entrust the judiciary—the unelected independent judiciary—to be the final decision-maker—subject to constitutional amendments—about proper ends that cannot be achieved because they are not proportionality stricto sensu. (shrink)

Which harms and benefits should be viewed as relevant when considering whether to launch cyber-measures? In this article, we consider this question, which matters because it is central to determining whether cyber-measures should be launched. Several just war theorists hold a version of what we call the ‘Restrictive View’, according to which there are restrictions on the sorts of harms and benefits that should be included in proportionality assessments about the justifiability of going to war (whether cyber or kinetic). (...) We discuss two such views – the Just Cause Restrictive View and Rights-based Restrictive View – and find both wanting. By contrast, we defend what we call the ‘Permissive View’. This holds that all potential goods and bads should be included in proportionality decisions about cyber-measures, even those that appear to be trivial, and where the various harms and benefits are given different weights, according to their agent-relative and agent-neutral features. We argue further that accepting the Permissive View has broader implications for the ethical frameworks governing cyberwar, both in terms of whether cyberattack provide just cause for coercive responses, including kinetic warfare and cyber-responses, and whether cyber-measures should be governed by just war theory or a new theory for cyber-operations. (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.