Lacey, Nicola
(2016)
The metaphor of proportionality.
Journal of Law and Society, 43 (1).
pp. 27-44.
ISSN 0263-323X
Abstract
The idea of proportionality has figured prominently in modern moral, legal and political theory. It has been central to the articulation of an ideal of limited punishment in modern legal orders. And, particularly in recent years, it has assumed a central place in the judicial and academic efforts to lay down standards for legitimate state conduct, and for judicial oversight of the exercise of power in a range of areas within human rights, administrative, public international and private law. But what role is this pervasive metaphor playing in law and legal discourse, and what explains the extraordinary recent upswing in its fortunes? In this paper, I aim to tackle these questions. Setting out from a broad view of the role of metaphor in legal and other social discourses, I map out histories of proportionality in different spheres (law, politics, culture), spaces (nation states and regions) and legal areas (criminal, public and private law), before moving on to consider the conditions under which abstract ideas like proportionality assume a salience within particular spheres of legal or political discourse. Focusing on the case of appeals to proportionality in criminal justice, I then go on to develop an argument about the conditions under which they enjoy some capacity to coordinate expectations or beliefs, and consider how far this thesis might be generalizable to other fields. In doing so, I clarify the relationship between my argument in this paper and that in a recent paper co-authored with Hanna Pickard, in which we argued that scholars of criminal justice have been apt to be misled by the apparently determinate power of an idea whose force in fact ultimately depends on a surrounding infrastructure of attitudes and institutions
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