Private Law Theory

ABSTRACT
Proportionality is a ubiquitous and yet elusive concept in law. An all-encompassing historical or genealogical account of proportionality in law goes well beyond the scope of this volume. Instead, we will focus on the more recent debates that proportionality has sparked across many jurisdictions and different areas of law. While the notion of proportionality is mostly associated with constitutional rights review, the main focus of this volume is a different one: the contributions will analyse how proportionality is contained in or affects private law settings in different jurisdictions. A study of proportionality in private law cannot, however, ignore the constitutional dimension. Proportionality’s role in private law is deeply intertwined with constitutional law: it can influence and, in some cases, even determine private law outcomes, as many of the contributions to the present volume demonstrate. With such a wide field to cover, this introduction can give only a cursory account of the permutations and migrations of proportionality. This tour d’horizon will start with the role of proportionality in German law, before it will turn to proportionality as a global principle of law and the potential role for comparative private law.

Köhler, Ben Gerrit, Proportionality in Private Law: A Primer in Proportionality in Private Law, pp 3-14, Franz Bauer, Ben Köhler, eds, Mohr Siebeck, May 2023, DOI: 10.1628/978-3-16-162293-9; Max Planck Private Law Research Paper No 23/11.