Private Law Theory

ABSTRACT
Proportionality has many faces. Some view it as a legal technique that embraces the indeterminacy of legal decision-making and underscores the need to choose between competing and irreconcilable values, while others hail it as the most promising attempt to structure and rationalise complex legal decision-making. The same observation can be made when we turn to proportionality in private law: some regard it as a conceptual misfit in this context, while others maintain that it has always been a principle or aspiration of private law. In this introductory contribution to an edited volume on proportionality’s role in private law, I try to provide an analytical framework in order to differentiate more precisely between proportionality’s various features and roles. The first part deals with the concepts as such and discusses three central features: the relational structure, the justificatory function, and the typical combination of two modes of reasoning. The second part focuses on the more specific roles proportionality can play in a private law context. Here, I distinguish first between genuine private law proportionality and constitutionally infused proportionality and then between proportionality as a component of private law and proportionality as an evaluative standard for private law. Drawing these distinctions may help to avoid overly simplistic and sweeping statements about proportionality’s either inherently subjective or power-constraining nature.

Bauer, Franz Albert, Proportionality in Private Law: An Analytical Framework in Proportionality in Private Law, pp 15-32, Franz Bauer and Ben Köhler, eds, Mohr Siebeck, May 2023, DOI: 10.1628/978-3-16-162293-9; Max Planck Private Law Research Paper No 23/12.