The Ethics of Human Rights (88): Justice and Proportionality

The notion of proportionality is central to many theories of justice:

  • the criminal should receive punishment that is proportional to the crime;
  • in war and law enforcement, the army or the police should not use disproportionate amounts of force;
  • people’s economic rewards should be proportional to what they deserve and to the amounts of personal effort, skill or whatever you believe is a basis of desert;
  • the people’s representatives in democratic institutions should represent equal proportions of the population;
  • people should pay taxes in proportion to their income;
  • etc.

But why should “things” be proportional? Perhaps it’s some kind of esthetic ideal: a beautiful body is a proportional one; a tasty dish is one with the right proportions of ingredients. So maybe justice is merely about beauty and taste. The world is just if things are not out of proportion, because if they were that would insult our esthetic taste. The word “fair” in “fairness” – often a synonym for justice – also means beautiful.

But I find that hard to believe. People want justice for other reasons than a desire for beauty, and demands of proportionality are about something more than esthetics. But whatever the reasons, proportionality has it’s place in theories of justice, and it would be illusory to try and get rid of it. The notion seems deeply engrained in moral intuitions.

However, while we should in general accept that proportionality plays a role in justice, we should also criticize some uses of proportionality. It’s hard to deny that more serious crimes should be met with more serious punishments, but it’s equally hard to deny that there should be an upper limit to this (you can’t execute Hitler 6 million times) and that criminal punishment should also serve other goals than people’s desire to have things in proportion. Punishment is used in order to protect the public against the criminal, and if a non-proportional punishment serves this goal then maybe we shouldn’t insist on proportionality for proportionality’s sake.

It’s also possible to criticize the use of proportionality in discussions about economic rewards, redistribution, poverty relief etc. If you want to argue that people who are more deserving have a claim to more compensation – and that undeserving people should receive less or nothing – then you need a good account of desert. However, such an account is elusive if not outright impossible. Effort and skill may not be signs of desert but rather the product of undeserved genetic inheritance. Difficult to know, and very intrusive if you want to find out. Proportional distribution as a method of realizing an idea of justice based on desert depends on desert being a good basis of justice. If it isn’t, proportionality may lead to injustice rather than justice because it may leave the poor to starve.

There’s a third case in which proportionality can undermine justice instead of promoting it. Governments may want to limit certain rights because they believe that this is necessary for a public good such as protection against terrorism, in which case they often make claims about proportionality. The possible consequences of terrorism are supposedly so severe that limitations of people’s right to privacy or right not to be tortured are proportional responses, even if these limitations are far-reaching. You can’t lift a heavy rock with an elastic band. The tool should be proportional to the end you want to achieve, and a world without terrorism requires some heavy tools. But again, proportionality as a method to achieve justice – a just world is a world without terrorists killing innocent people – may achieve the opposite. The harm caused by limitations of rights is often greater than the harm of terrorism.

A final example of the way in which proportionality can lead us astray when thinking about justice. Many of us tend to believe that we owe more to those close to us and that justice is in the first instance something between members of the nation state. And it is indeed common to see concerns about human rights violations diminish in proportion to the distance between those who are concerned and those whose rights are violated. However, if ideas about closeness are overemphasized in thinking about justice – and they often are since patriotism, nationalism, racism and other forms of in-group bias are quite common – then proportionality will again cause injustice rather than justice.

The point of all this is not to criticize proportionality as such but the manner in which it is used. Proportionality is one method to achieve justice, and can, given some prerequisites, help us to achieve justice. You can’t fight terrorism with good will alone. You shouldn’t impose life sentences for traffic violations. And you shouldn’t give everyone equal economic rewards. But let’s not overemphasize one very peculiar method to achieve justice, a method moreover that is often based on shaky assumptions such as desert, the moral relevance of closeness or the effectiveness and necessity of certain policies.

More posts in this series are here.


One thought on “The Ethics of Human Rights (88): Justice and Proportionality

  1. Hi! I was wondering could you do one on Ukraine-Russia conflict. I mean I am interested what are your views/insights into it. It is an interesting one from the point of view of human rights imho. On one hand, the population of Crimea is clearly mostly Russian and no one denies it. Democratically they have a right to demand to be a part of Russia and to self-determination. On the other hand, the way through which it is achieved and Russian actions are far from human rightousness.

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