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Engle on the History of the Principle of Porportionality

By Lawrence Solum

Eric Engle (Harvard University - Harvard Law School and Universität Bremen) has posted The History of the General Principle of Proportionality: An Overview on SSRN. Here is the abstract:

Proposes a brief history of the concept of proportionality in law in order to understand the appearance, worldwide, of the legal rule that state action must be a rational means to a permissible end which does not unduly invade protected human rights. I argue that the concept of proportionality (means-end rational review), though evolving in and through law, has shown remarkably continuity over several centuries, even millennia. The theory of proportionality is traced to Aristotle, and the practice of proportionality jurisprudence, developed over several centuries as an historical evolution refining and modifying Aristotle's original theory along the way. The general principle of proportionality (means end rational review with strict scrutiny for suspect classes) represents a key aspect of contemporary legal thought. It is the methodological capstone of the current post-positivist neo-naturalist perspective on law which unites both positive and natural law.

Full post as published by Legal Theory Blog on July 13, 2009 (boomark / email).