Sur les traces du principe de proportionnalité : une esquisse généalogique

Antoine Guilmain, « Sur les traces du principe de proportionnalité : une esquisse généalogique », Revue de droit de McGill, vol 61, nº 1, 2015, pp. 87-138.

Proportionality has the wind in its sails, to say the least! Ever since its introduction in Quebec’s Code of Civil Procedure, the proportionality principle has been ingrained in the law and in our minds (art 4.2 CCP). This reality can only be reinforced with the adoption of the new Code of Civil Procedure, which truly transforms proportionality into a philosophy. Be that as it may, there is a path that leads to every success, and this notion certainly holds true for proportionality. From the Code of Hammurabi to Prussian administrative law, from the Ancients to the Enlightenment, proportionality has permeated the law since time immemorial, albeit under various names. This article proposes a history of proportionality in the legal context. This ambitious — even risky — objective is divided into three periods. First, the premodern stage highlights the first steps of proportionality, in both the philosophical and normative senses. Second, the modern stage reveals the different applications of proportionality in the public and private law spheres. Third, the postmodern stage is defined by the exponential expansion of proportionality in all branches of the law and juridical orders. In the end, this article seeks to show that, although proportionality might be a fragmented area of research, its parts have much in common.

This content has been updated on 7 April 2018 at 17 h 13 min.