Proportionality in Constitutional Law: Why Everywhere But Here?

TLDR: In this paper, the authors present a case where a judge is asked to decide whether an action is out of proportion and immoral for a neighbor to take a four-wheel drive car without asking and not return it until the next evening.

Abstract: INTRODUCTION Suppose you are a judge--not on a European constitutional court, where the principle of proportionality is generally accepted, nor on the U.S. Supreme Court, where, according to general wisdom, the principle is hardly known and hardly used, but on a fictitious moral court. No statutes, no precedent--each case is decided on its moral merits only. Two neighbors, John and Frank, who live high up in the mountains come before you. In the middle of a cold and stormy winter night, John took Frank's four-wheel drive car without asking and didn't return it until the next evening. Frank who had wanted to pick up his elderly mother in the morning at the lonely bus station in the valley, couldn't do so. The old lady stood in the cold for two hours before the postman drove by; he had to bring her to the hospital with frostbite. Frank thinks John should at least apologize for his immoral action. John is truly sorry for what happened but thinks he shouldn't be morally blamed. You are the judge--what will you do? You ask John how he could do what he did. He explains that he took Frank's car to bring his pregnant wife to the hospital; her water had broken. You ask why he didn't use his own car. He explains that he needed a four-wheel drive car because it had snowed heavily. You ask why he took the car without asking. He points out that he and Frank had often taken and used each other's things without asking and that he hadn't wanted to wake Frank up in the middle of the night. Then you turn to Frank. In view of what John has explained, does he still blame John for his immoral action? Frank does, because he had told John of his plan to pick up his mother the next morning. You confront John with this information. He says he is sorry for the old lady's frostbite but that he knew that with the postman driving by nothing serious could happen to her, while his wife's situation was a matter of life and death. You call the hospital, and it turns out that indeed John's wife, who delivered unexpectedly early, could have died if she hadn't reached the hospital when she did. And it also turns out that Frank's mother has recovered well and fast. Whatever you decide, maybe that John and Frank should reconcile because what happened was a chain of unfortunate events, you have engaged in a proportionality analysis. You asked Frank about the end that he pursued; you found out that the end was legitimate; that his action was a helpful, even a necessary means to pursue the end; that there was no alternative means that would have harmed Frank and his mother less; and that the end, saving John's wife's life, was important enough to justify the harm done to Frank's mother. Proportionality analysis is about means and ends, and whenever there is no law, here no moral law, specifically commanding, prohibiting, or allowing an action, we justify or condemn the action based on the legitimacy of the end pursued and on the helpfulness, necessity, and appropriateness of the action as a means to that end. The proportionality principle thus reads as follows: If you pursue an end, you must use a means that is helpful, necessary, and appropriate. A means that doesn't help to reach the end isn't a real means--to use it would be out of proportion. It is also out of proportion to use a means that does more than necessary, for example a means which is more harmful or more expensive than necessary. It is equally out of proportion to use a means that is inappropriate because, even though it is necessary, by using it you do more harm than the end is worth or you spend more than you gain. It would have been out of proportion and, in our context, immoral if John had taken Frank's helicopter, when, even though he knew how to fly it, he didn't have the skill to land; this would not have helped him to save his wife. It would have been out of proportion and immoral for John to take Frank's four-wheel drive car if John's normal car would have worked just as well; this would have been unnecessary to save his wife. …