What is the proportionality test in Law?
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Sometimes two things should be true, but only one of them can be. Imagine you have an unfettered right to breakdance in public and someone else has a right to not be kicked in the face while walking down the street. In this example, someone got kicked in the face by your breakdancing in public. Both things should be true, but since they conflict in this case one has to ‘win’. Proportionality is looking at the damage to the rights (on both sides) that would happen from various potential holdings and ascertaining which ones are most damaging to which rights and coming up with the ruling that best preserves (or damages the least) each right.
Sometimes two things should be true, but only one of them can be. Imagine you have an unfettered right to breakdance in public and someone else has a right to not be kicked in the face while walking down the street. In this example, someone got kicked in the face by your breakdancing in public. Both things should be true, but since they conflict in this case one has to ‘win’. Proportionality is looking at the damage to the rights (on both sides) that would happen from various potential holdings and ascertaining which ones are most damaging to which rights and coming up with the ruling that best preserves (or damages the least) each right.
In England & Wales “proportionate” basically has its normal meaning: similar in size, magnitude, effect, etc..
This is probably easiest with an example.
In England & Wales, if someone attacks you you’re allowed to use “proportionate” force to defend yourself.
Let’s say someone breaks into your house, attacks you with a knife and it seems as if they might kill you. You grab a knife yourself and stab them.
That is likely to the considered proportionate by the law. You risk killing someone but you’re at risk of being killed yourself. You’re using a weapon, but so is your assailant. So even if you do kill your assailant you’re unlikely to be convicted.
On the other hand, imagine you’re a fit person in their 20s and you’re attacked by a frail old-age pensioner with their stick. You pick up a stick of your own and beat them around the head with it.
That is not likely to be considered proportionate. You risk seriously injuring someone, when you’re at no real risk. You could always just back away from your assailant and they’re not going to be able to catch you. You will probably be charged and convicted of assault (or a similar crime).
Things can be more complicated than this – where you’re comparing different things. For example, governments can breach people’s human rights if what they’re doing is a proportionate way to achieve a legitimate goal. A government might be able to extend pre-trial detention for terrorist suspects. It takes away their liberty but might be a proportionate way of stopping them harming others: the good outweighs (or is finely balanced with) the bad.
This how things work in England & Wales and I’m pretty certain in Scotland too. I believe proportionality generally works the same way across other legal systems.
In England & Wales “proportionate” basically has its normal meaning: similar in size, magnitude, effect, etc..
This is probably easiest with an example.
In England & Wales, if someone attacks you you’re allowed to use “proportionate” force to defend yourself.
Let’s say someone breaks into your house, attacks you with a knife and it seems as if they might kill you. You grab a knife yourself and stab them.
That is likely to the considered proportionate by the law. You risk killing someone but you’re at risk of being killed yourself. You’re using a weapon, but so is your assailant. So even if you do kill your assailant you’re unlikely to be convicted.
On the other hand, imagine you’re a fit person in their 20s and you’re attacked by a frail old-age pensioner with their stick. You pick up a stick of your own and beat them around the head with it.
That is not likely to be considered proportionate. You risk seriously injuring someone, when you’re at no real risk. You could always just back away from your assailant and they’re not going to be able to catch you. You will probably be charged and convicted of assault (or a similar crime).
Things can be more complicated than this – where you’re comparing different things. For example, governments can breach people’s human rights if what they’re doing is a proportionate way to achieve a legitimate goal. A government might be able to extend pre-trial detention for terrorist suspects. It takes away their liberty but might be a proportionate way of stopping them harming others: the good outweighs (or is finely balanced with) the bad.
This how things work in England & Wales and I’m pretty certain in Scotland too. I believe proportionality generally works the same way across other legal systems.
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