The principle of proportionality

2020 ◽  
Vol 11 (1) ◽  
pp. 107-133
Author(s):  
Yan Zhou
Keyword(s):  
Dynamic Process ◽  
Ad Hoc ◽  
Illocutionary Force ◽  
Institutional Discourse ◽  
Ordinary Conversation ◽  
Mandarin Conversation ◽  
Principle Of Proportionality ◽  
Proportionality Principle

Abstract In Mandarin conversation, utterances about future actions with severe consequences are observed to correlate with bigger promises, marked by devices indicating greater illocutionary force, as compared with those about actions with less serious consequences. Applying the principle of proportionality proposed by Goffman (1971), I argue that participants’ design of promise is proportional to the severity of the action consequences, which is evaluated by the participants on a moment-by-moment basis. The ad hoc construction of promises shows that promising is a dynamic process, rather than a one-time action. The proportionality principle may also account for the differences between promises in institutional discourse and ordinary conversation.

Doctor–patient consultations in dyadic and triadic exchanges

Interpreting ◽  
2005 ◽  
Vol 7 (2) ◽  
pp. 193-210 ◽  
Author(s):  
Carmen Valero-Garcés
Keyword(s):  
Discourse Analysis ◽  
Foreign Language ◽  
Ad Hoc ◽  
General Structure ◽  
Methodological Approach ◽  
Institutional Discourse ◽  
Patient Interaction ◽  
Different Types ◽  
Turn Taking ◽  
Quantitative Analyses

This article presents the results of a study on doctor–patient interaction in dyadic and triadic exchanges. The analysis is based on transcripts of recordings done at healthcare centres in northern Madrid, Spain, and Minneapolis, USA. The methodological approach is that of institutional discourse analysis as developed by Drew and Heritage (Drew & Heritage 1992; Heritage 1995, 1997; Drew & Sorjonen 1997). Three different types of doctor–patient interaction are examined: (1) doctor/foreign-language patient; (2) doctor/ foreign-language patient/ad hoc interpreter; (3) doctor/ foreign-language patient/trained interpreter. Topics such as the assignment of participant roles, changes in the general structure, turn-taking, and asymmetrical relationships will be explored. The study is mainly descriptive and qualitative, but also includes some comparative quantitative analyses.

scholarly journals The Swedish Riksdag as Scrutiniser of the Principle of Subsidiarity

2016 ◽  
Vol 12 (2) ◽  
pp. 294-317 ◽  
Author(s):  
Anna Jonsson Cornell
Keyword(s):  
Early Warning ◽  
Selection Mechanism ◽  
National Parliaments ◽  
European Public ◽  
Early Warning Mechanism ◽  
Principle Of Proportionality ◽  
Definition Of ◽  
Proportionality Principle ◽  
The Eu

Early Warning Mechanism – Principle of Subsidiarity – Lisbon Treaty – Protocol No. 2 on Proportionality and Subsidiarity – A theoretical definition of the Principle of Subsidiarity – The scope of the Principle of Subsidiarity – Scrutiny of the respect for the principle of subsidiarity – The role of national parliaments in the EU legislative procedure – The Swedish Riksdag – national constitutional law – decentralised scrutiny – no selection mechanism – sectoral committees – reasoned opinions – the role of the Plenary – the Committee on the Constitution – method for scrutiny – the principle of proportionality – principle of conferral – legality – European Public Prosecutor’s Office – broad or narrow scrutiny – impact of the Early Warning Mechanism

scholarly journals Information Duties Stemming from the Insurance Distribution Directive as an Example of Faulty Application of the Principle of Proportionality

2020 ◽  
pp. 31-54
Author(s):  
Marta Ostrowska
Keyword(s):  
Focal Point ◽  
Special Importance ◽  
Member States ◽  
Legal Principles ◽  
Wide Range ◽  
Principle Of Proportionality ◽  
Proportionality Test ◽  
Proportionality Principle ◽  
The Eu ◽  
The Way

AbstractIDD directive constitutes a piece of EU primary legislation and therefore it is obliged to respect the legal principles ruling the way in which EU acts towards the Member States, among which proportionality principle is of special importance. A legal act complies with the principle of proportionality if the measures adopted by the EU do not exceed the limits of what is appropriate and necessary to attain the objectives legitimately pursued by the legislation in question. According to IDD’s recitals, the measures adopted therein are proportional to the aim pursued by the IDD, i.e. customer protection. However, a live discussion boosted over the focal point of the IDD, i.e. a wide range of information duties, may lead to different conclusions and thereby put proportionality of the IDD in doubts. To verify this thesis, the author attempts to carry out the ‘proportionality test’ of the discussed information duties.

scholarly journals Humanizing siege warfare: Applying the principle of proportionality to sieges

2021 ◽  
pp. 1-22
Author(s):  
Maxime Nijs
Keyword(s):  
Armed Conflicts ◽  
Humanitarian Relief ◽  
Civilian Population ◽  
Additional Protocol ◽  
Siege Warfare ◽  
Relief Operations ◽  
Principle Of Proportionality ◽  
The Right ◽  
Proportionality Principle

Abstract Siege warfare and its devastating humanitarian consequences have been one of the defining features of contemporary armed conflicts. While the most apparent restriction of siege warfare appears to be provided by the prohibition against starvation of the civilian population as a method of warfare, the prevailing restrictive interpretation of this prohibition has left civilians remaining in a besieged area unprotected from the hardships they endure. This article demonstrates that shifting the focus from the prohibition against starvation to the rules regulating humanitarian relief operations does not seem helpful due to the ambiguities regarding the requirement of consent and the right of control of the besieging party. In remedying this protection gap, this article examines whether and how the principle of proportionality applies in the context of a siege. After analyzing whether the encirclement and isolation aspect of a siege can be considered an attack in the sense of Article 49(1) of Additional Protocol I (AP I), to which the proportionality principle applies, the article investigates how this principle operates in the context of a siege. It will be demonstrated that Article 57(2)(b) of AP I requires that the proportionality of a siege must be continuously monitored.

The Proportionality Principle in the Jurisprudence of the Russian Constitutional Court

2021 ◽  
Vol 46 (2) ◽  
pp. 203-233
Author(s):  
Alexandra Troitskaya
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Principle Of Proportionality ◽  
Theoretical Considerations ◽  
Proportionality Principle

Abstract This paper addresses the boundaries on restrictions of human rights imposed by the proportionality principle, examines the elements of the structure of this principle, and attempts to present the meaning of its elements consistently in terms of the potential for the protection of fundamental rights that are subject to restrictions. The main criticisms of some proportionality tests are considered, as well as ways to minimize the risks associated with the use of proportionality. These theoretical considerations are placed in the context of the jurisprudence of the Russian Constitutional Court, to demonstrate that the Court, instead of consistently applying proportionality tests, often draws generalized conclusions regarding the proportionality (or disproportionality) of restrictions and therefore tends to heighten some of the risks of applying the principle. One can observe some positive changes in the application of the principle, and in further requests for this. Conclusions are formulated concerning the improvement of the Court’s activities in terms of a more consistent and structured implementation of the principle of proportionality.

The restrictive function of legal responsibility and the limits of its action through the prism of proportionality principle

2021 ◽  
pp. 400-411
Author(s):  
Irina V. Kushnir
Keyword(s):  
Civil Rights ◽  
Legal Liability ◽  
The State ◽  
Legal Responsibility ◽  
Legal Policy ◽  
Maximum Extent ◽  
Legal Punishment ◽  
Principle Of Proportionality ◽  
Theoretical Issues ◽  
Proportionality Principle

We draw attention to the problem of excessive restriction risk of human and civil rights and freedoms in the process of establishing and applying the institution of legal responsibility by the state. We consider general theoretical issues of the concept and functions of legal responsibility. We substantiate the position on the need to separate the restrictive function from legal liability. As an intersectoral institution of Russian legislation, legal re-sponsibility is characterized by the performance of the following functions: restrictive, preventive, guaranteeing, restorative and educational. We draw attention to the issues of legal liability proportionality in relation to its restric-tive function. We disclose the content of proportionality principle in relation to legal responsibility as an intersectoral institution of legislation. We imagine that the remedy actively used in the legal policy of the state in the form of legal punishment and legal responsibility in general should correspond to the maximum extent to proportionality principle in order to prevent arbitrary and excessive restriction of rights and freedoms. Various kinds of deviations, deviations from the principle of proportionality of legal responsibility are supposed to be interpreted in theory as one of the most important prerequisites for the formation of dysfunction and imbalance of the institution in question. Violation of proportionality principle of responsibility in law is proposed to be interpreted as its dysfunction.

The Principle of Proportionality: ‘Force Protection’ as a Military Advantage

2012 ◽  
Vol 45 (1) ◽  
pp. 71-89 ◽  
Author(s):  
Robin Geiss
Keyword(s):  
Primary Concern ◽  
Military Commander ◽  
Considerable Controversy ◽  
Principle Of Proportionality ◽  
Proportionality Principle

‘Force protection’ is a primary concern of every military commander. Undoubtedly, it is an important and legitimate factor in the planning of every attack. However, when it comes to the humanitarian proportionality principle there is considerable controversy over the question to what extent ‘force protection’ can be factored into the humanitarian proportionality calculus as a relevant military advantage to be weighed against expected civilian casualties, injuries and damage. This question is pursued in this article.

scholarly journals Metonymy and frame integration: Interfacing between concepts and discourse

2019 ◽  
Vol 20 (1) ◽  
pp. 1-23
Author(s):  
Georgios Ioannou
Keyword(s):  
Dynamic Process ◽  
Common Ground ◽  
Ad Hoc ◽  
Not Given ◽  
Integration Mechanism ◽  
Typological Approach ◽  
Partial Integration

Abstract This article inquiries into specific aspects of the relation between conceptual contiguity found in metonymic shifts and the online construction of frames, seen as a dynamic process of construal. It first reviews the theory of metonymy regarding the conceptual, lexical and contextual facets of the phenomenon. It then explores the possibility of extending the conceptual relevance of metonymy beyond the traditional typological approach of metonymic categorization, re-interpreting it as a frame-integration mechanism, or blending, whereby two frames are brought together into an extended ICM. Metonymic blending is formulated as a partial integration between two input spaces discursively driven, whereby an ad hoc identification of a referential commonness plays the role of the generic space of the blending. Subsequently, in the light of the assumption that frame-extension is not given categorically but it also includes – beyond its cognitive relevance – an interactional aspect, this analysis draws an interesting link: that between the generic space of metonymic blend, and common ground. The latter is precisely what facilitates the metonymic blend, regulating the distance between the integrated frames, at the same time remaining silent as discursively given information.

Humane Neoclassicism

2019 ◽  
pp. 209-236
Author(s):  
Tapio Lappi-Seppälä
Keyword(s):  
Criminal Law ◽  
Use Of Force ◽  
Criminal Justice Policy ◽  
Main Function ◽  
Moral Value ◽  
Illegal Behavior ◽  
Upper Limit ◽  
Principle Of Proportionality ◽  
Excessive Use Of Force ◽  
Proportionality Principle

The principle of proportionality has its roots in the rule of law, legal safeguards, and guarantees to citizens against abuse, arbitrariness, and excessive use of force. It is more important to prevent overly harsh penalties than to prevent overly lenient ones. The main function of the proportionality principle is, thus, to impose the upper limit that the punishment may never exceed. In this framework, limiting discretion through proportionality is, above all, limiting excess. The normative framework of Scandinavian criminal justice policy—“humane neoclassicism”—stresses both legal safeguards against coercive care and a preference for less repressive measures in general. The key function of criminal law is to produce compliance through norm declaration and reinforcement. People refrain from illegal behavior not because it may be punished but because it is morally blameworthy (or because of force of habit). Criminal law’s goals are best served by a system of sanctions that maintains a moral character and demonstrates the relative blameworthiness of wrongful acts, is perceived to be fair and just, and respects the rights and intrinsic moral value of all parties involved.

Proportionality and the Seriousness of Crimes

2019 ◽  
pp. 51-75
Author(s):  
Jesper Ryberg
Keyword(s):  
Criminal Offending ◽  
Principle Of Proportionality ◽  
Proportionality Principle

The principle of proportionality presupposes that it is possible to make some sort of scaling of crimes in seriousness. Three theoretical challenges face the comparison of the seriousness of crimes: the “harm specification challenge,” which posits that some crimes do not in any direct way involve harm, while others involve harm to an extent that seems to reach far beyond what can plausibly be attributed to the criminal act that has caused it; the “weighing challenge,” which concerns the question of how different degrees of harm and culpability should be combined in a nonarbitrary manner into an overall assessment of the seriousness of a crime; and the “individualization challenge,” in which one and the same type of crime may affect victims very differently. Three strategies for meeting these challenges are available—that the challenges arise as a result of overtheorization, that one or more can be met by adopting a subjectivist view on criminal offending, and that they can be met by basing the determination of seriousness of standardized judgments of harm—but they are unconvincing. In the absence of proper answers, the challenges constitute a serious problem for the proportionality principle as a retributivist principle of penal distribution.

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