Foreign Policy Blogs

Eroded Proportionality

A boy looks at a destroyed Russian infantry fighting vehicle during an exhibition displaying destroyed Russian military vehicles in central Kyiv, May 21. REUTERS/Gleb Garanich

The concept of Proportionality in Law and in the application of policy is a crucial measure that separates a fair and just system of rules and laws from one that functions to the benefit of a few powerful individuals. The determination of what is considered proportional can range from a directed policy in the application of criminal justice, to an established etiquette that while being a law of customary practice, is essential for the operation of a healthy Parliamentary Democracy.

There are likely many examples in your own country and community where Proportionality has been seen as being neglected or intentionally abused. This is principally noticed in the application of criminal law and justice as it is seen most often by community members directly. Excessive force by authorities is often an abuse of power and their position. The resulting systemic shield for those in authority often works against those without the means to defend their rights, eroding a justice system from within. Placing some individuals or groups above others in the application of justice often is not just a matter of administrative imbalance, but is the symptom of a larger systemic problem where some have more justice than others.

A passive prohibition on the ability for an individual to defend themselves against accusations is tantamount to reducing their humanity by restricting the ability of those individuals to shelter or feed themselves and their family. If you are unable to earn a living and pay for legal or health services, you are unable to then meaningfully act in a manner to challenge for your rights in a society. One of the first legal documents to recognise this matter of justice in a society was in 1215 through the Magna Carta. The document sought to restrict the powers of Royalty against the economic interests of the population by making a individual’s right to their own property enshrined in law. An individual would be able to maintain their property, and the Royals would only be able to remove their rights to their property if it was deemed proportional to the interests of the greater society. Proportionality would attempt to limit an individual in suffering undue harm and destitution against the weight of the illegal actions they were being accused of committing. With property, an individual would have the economic means to defend their interests against those who would injure them by means of bad faith actions against them and their family. Even a King or Queen would be unable to unseat an individual from their land without just cause, this included the whims or moods of the unelected Regent.

While the system of a Royal Head of State still exists in Parliamentary Democracies like the United Kingdom and Canada today, much of the actions and proportional responsibility of the Government is not formally enshrined in a set document, but is based on a generational tradition of customary rules and practices. A break in this etiquette is considered an act contrary to the basic tents of the democracy, and much of the system is based around what are known as Customary Laws. One concept that is essential in such a system is that of Ministerial Responsibility. When electing these Governments, you are effectively electing the party, and not the party leader directly. So enshrined is party power in these countries that a Prime Minister could theoretically be in power forever, only limited by popular vote, party support for their leadership and their own mortality. A party could create any laws outside of concepts of Proportionality if checks and balances in Parliament and the Justice system were eroded. Power could be permanently concentrated in an Executive made up of a small cabinet of party members, a fearful prospect if they sought to corrupt such a system. Ministerial Responsibility in concept and in practice is at the core of such a democracy. A failed Minister must resign, as any action taken by a Ministry, whether known to the Minister or unknown, is their responsibility. They must act in a fair and proportional manner or be removed by their party, this also includes the Prime Minister them self.

With the absence of Proportionality in Law in a society, it becomes increasingly difficult for a nation to decide whether the actions of other nations is one based in self-defense, or one that is an act disproportional to their claimed injury. The year 2022 may not be unique in the application of disproportional military responses, but the effect of brutal conflict in the last few months are a good example of how eroded proportionality becomes displaced by propaganda and war. Absolute power certainly corrupts absolutely, but the following result is that that absolute power will take any actions to feed its own power. In more passive examples, you will see Proportionality eroded in once healthy legal systems through policies that offend those checking the power of a regime. Further down the line, the involvement of force is made to be normalised along with the diminishment of certain sectors of a society. The whims of tyrants becomes paramount when the democracy turns more populist and less based on checks and balances, and only a measure of direct power can prevent the use of tanks on innocent civilians. Corruption is the end result and it has affected many of us in 2022, even if our Ministers have been responsible and our nations just. Unfortunately, 2022 was the year where Proportional policy has given way to unmeasured responses to several conjoined crises. More power and less rights will never produce justice.



Richard Basas

Richard Basas, a Canadian Masters Level Law student educated in Spain, England, and Canada (U of London MA 2003 LL.M., 2007), has worked researching for CSIS and as a Reporter for the Latin America Advisor. He went on to study his MA in Latin American Political Economy in London with the University of London and LSE. Subsequently, Rich followed his career into Law focusing mostly on International Commerce and EU-Americas issues. He has worked for many commercial and legal organisations as well as within the Refugee Protection Community in Toronto, Canada, representing detained non-status indivduals residing in Canada. Rich will go on to study his PhD in International Law.

Areas of Focus:
Law; Economics and Commerce; Americas; Europe; Refugees; Immigration