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Proportionality in Pursuit of Justice

Specifically put, proportionality isn't a one way street in which the power of the state is neutered to the benefit of an individual.

In 1764, Cesare Beccaria wrote a treatise titled On Crimes and Punishments (Italian: Dei delitti e delle pene). In it he drew on Montesquieu, who had argued that ‘every punishment which does not arise from absolute necessity is tyrannical.’ From this concept, Beccaria concluded:

Crimes of every kind should be less frequent, in proportion to the evil they produce to society… If an equal punishment be ordained for two crimes that injure society in different degrees, there is nothing to deter men from committing the greater as often as it is attended with greater advantage.

In modern times, the principles of Beccaria can be seen in the four stages to proportionality test in European Union Law:

  • 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

While proportionality is most frequently used when talking about how the state treats an individual, though generally when people talk about ‘the state’ they actually mean a representative of the state such as a police officer, proportionality also applies to the response of a person or group of people toward an individual, community or state authority. More specifically put, proportionality isn’t a one way street in which the power of the state is neutered to the benefit of an individual.

A symbiotic relationship, or if you will, deal, is struck in which the state agrees not to take disproportionate action against an individual in exchange for that individual not taking disproportionate action against the state. To provide an example, the state won’t enact the death penalty for parking in a no stopping zone and an individual won’t start shooting representatives of the state because they have received a parking ticket. So long as this bargain holds, the result is a civil society.

However, at times this bargain breaks down and a disproportionate response is metered out. In such instances, meeting disproportionality with disproportionality is not the answer. As it is often noted:

An eye for an eye makes the whole world blind.

Protest movements tend to forget this concept because a wave of indignation and self-righteousness consumes the field of view and this is when the looting starts. In such instances the original crime is subsumed by a wave of popular violence. As a result, not only do more innocent victims suffer, but the original injustice persists unto another time.

Only by remembering Beccaria’s wisdom can we hope to regain the path to justice:

Even a useful injustice can never be allowed by a legislator, who means to guard against watchful tyranny, which, under the, flattering pretext of momentary advantages, would establish permanent principles of destruction, and, to procure the ease of a few… would draw tears from thousands of the poor.

Good night, and good luck.

Detail of the pediment of the courthouse, Rome, Italy by Jebulon is licensed under CC0 1.0.

This post is day 029 of my #100DaysToOffload challenge. If you want to get involved, you can get more info from 100daystooffload.com.

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