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10 Dartmouth L.J. 1 (2012)
The History of the General Principle of Proportionality: An Overview

handle is hein.journals/dcujl10 and id is 3 raw text is: THE HISTORY OF THE GENERAL PRINCIPLE OF PROPORTIONALITY: AN OVERVIEW ERIC ENGLE Could we get over all our difficulties respecting a balance of interests. This article examines the history of the general principle of proportionality in law from Aristotle to present. The general principle ofproportionality (means end rational review with strict scrutiny for suspect classes) holds that state action must be a rational means to a permissible end that does not unduly invade fundamental human rights. The proportionality principle originated in Aristotle's theory that the just is a ratio (proportion) between two parties, mediated by an abstract principle. The general principle of proportionality represents a key aspect of contemporary legal thought which unites both positive and natural law. The proportionality principle is one of the main vectors which drives convergence of common law and civil law into a globalized jus commune, a hybrid of inductive binding case law and deductive general principles which converges substantive rules of national laws toward uniform global rules. To avoid confusion, use of the term balancing to describe proportionality analysis should be avoided because retributive balancing (lex talionis) is not distributive, but is commutative, and because economic interest balancing looks to financial costs and benefits of alienable property rights rather than to the resolution of normative conflicts between inalienable fundamental human rights. Proportionality, economic cost benefit analysis, and lex talionis are three distinct interpretive methods that should not be confused. I. INTRODUCTION ................................. ...................... 1 II. PROPORTIONALITY IN ANTIQUITY....................................3 III. PROPORTIONALITY IN MODERNITY ...................................6 A. German Law..................... ................6 B. Common Law ..................... ...............7 C. Contemporary Law................... .............8 IV. CONCLUSION ...................................................... 10 I. INTRODUCTION This article proposes a brief history of the concept of proportionality in law in order to understand the worldwide appearance of Lehrbeauftragter (adjunct), Humboldt Universitat Berlin, Faculty of Law. JD St. Louis, DEA Paris II, Mention, LL.M. Dr.Jur. Bremen, Germany. Eric.Allen.Engle ajustice.com, http://papers.ssrn.com/author id=879868 This research was funded by Harvard Law School. The author wishes to thank Harvard for its support. Buten un Binnen - wagen un winnen. 1 John Dickinson, Empire and Nation: Letters from a Farmer in Pennsylvania in Richard Henry Lee (ed. Forrest McDonald), Letters from the Federal Farmer (Indianapolis: Liberty Fund 1999). I

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