Author Interview: Local Meanings of Proportionality

Afroditi Marketou

University of Luxembourg

Afroditi Marketou discusses her new book ‘Local Meanings of Proportionality’ with us.

Tell us a little bit about the book.

Proportionality increasingly dominates the legal imagination. Its spread, accompanied by a global paradigm of constitutional rights, appears to be an irresistible natural development. My book was inspired by the intuition that even though courts and lawyers around the world reason more and more in proportionality terms, proportionality can mean very different things in different contexts, even within the same legal system. While the relevant literature has paid little attention to differences in the use of proportionality, identifying its local meanings is crucial to making sense of its spread, to assessing its success, and to appraising the possibility of convergence between legal systems. Through an in-depth study and comparison of the use of proportionality by legal actors in France, England, and Greece, the book shows that the local meanings of proportionality are not simply deviant applications of a global model. Instead, they reflect the legal cultures in which proportionality evolves, local paths of cultural change and local patterns of Europeanisation.

What inspired you to take up this project?

The book presents the results of my doctoral thesis. When I started this project, I was convinced that proportionality was a suitable candidate for a global grammar of constitutionality and could be transplanted from one jurisdiction to another. I sought to identify different factors that could be sources of variance in the application of the global model of proportionality. But when faced with the actual use of proportionality by legal actors, I saw that variance was much more important than the narrative of global constitutionalism assumes: while legal actors may use the same words in different settings, they do not actually mean the same thing. So, it became hard to identify the factors that affect the application of the global model of proportionality, since this global model did not exist. My project then became to interpret the different uses of proportionality without taking proportionality’s meaning for granted. Throughout this work, I considered differences in the use of proportionality as an object worthy of study in and of themselves. By studying proportionality as a cultural practice, I tried to render the local versions of proportionality less enigmatic and to present them as parts of legal actors’ peculiar manner of imagining the real.

Whose work was influential on you throughout the project?

My research draws largely on the work of comparative lawyers who pay particular attention to culture, most notably Pierre Legrand and Paul Kahn. Gunther Teubner’s work on legal irritants has also influenced me a lot, as well as his autopoietic theory of law. In the search for local meanings, I was particularly interested in the work of Jacco Bomhoff and the way he uses legal semiotics. Finally, I was lucky to fall upon the books of Clifford Geertz in cultural anthropology while wandering around the EUI library one day when I felt completely lost with my doctoral research. His work was really important for me in my effort to interpret proportionality as a cultural practice.

In the study of French, English and Greek public law in particular, I drew on the work of scholars like Véronique Champeil-Desplats, Mitchel Lasser, Yannis Drossos, Constantinos Yannakopoulos, Paul Craig and John Allison.

What challenges did you face in writing the book? 

In terms of method, one of the biggest challenges that I met was confronting my research questions to what I was observing “in the field”. While initially I imagined proportionality as a prong-structured model of reasoning, for example, I soon realized that there were other “things” called proportionality that are not close to that model at all, like the French proportionnalité de l’impôt. This is what led me to study proportionality as language, and thus to get rid of my own a priori ideas and beliefs concerning its content. 

Another important issue that I had to face was the fluidity of the legal cultures that I was studying, which were all undergoing fundamental transformation under the pressure of socio-political crises. This was particularly the case for the English common law in times of Brexit.

In practical terms, an important problem was the difficulty of access to legal sources, especially Greek legal sources, as the most important Greek databases are privately-owned.

In terms of personal life, my daughter was born while finalizing the manuscript of the book, so perfectionism became something of a luxury during the final stages of this project.

What do you hope to see as the book’s contribution to academic discourse and constitutional or public law more broadly?

The book provides a counter-discourse to the narrative of the universal nature of proportionality and human rights. It shows that it is too simplistic to say that proportionality is a successful transplant, and that Western legal systems are converging on a common constitutional model. The meaning, form, and function of proportionality are very different across space and time and the criteria for evaluating its success are mainly local. 

The book also contributes to theoretical and methodological debates in comparative law. It shows that culture is much more than a residual notion to which we can attribute what we perceive as irrational uses of a legal scientific tool. Culture is a context of meaning that can be described, and within which peculiar legal practices make sense. It can offer a discourse that preserves local legal knowledge against universalising narratives. Comparative law as the interpretation of legal cultures is a worthwhile enterprise: unravelling the mental worlds of others gives us the opportunity to reflect upon the necessary parochialism of our own categories, myths and frames of signification, no matter how universal we think they are. Understood in this way, comparative law could thus promote legal convergence and integration in a way that is more respectful and responsive to local practices and sensitivities.

What’s next?

I am continuing my research in this direction and currently working on an individual research project on the local meanings of EU law. The idea is to develop a comparative methodology for the study of EU law as a cultural practice. Through a comparison of the different ways in which core EU law concepts are used in different settings, the purpose is to explore the different ways in which lawyers in Europe imagine the world, the law, and Europe itself. 

I am also working on a quite different project on law beyond the state. Together with Joana Mendes, I am editing a collective volume on the role that law and legal technique have played in making global governance work. What inspired this project was the observation that while global governance operates at the margins of traditional legal rules and categories, lawyers have played a crucial role in the construction and development of the complex mechanisms and multi-level systems that characterise the current context of globalisation.

Afroditi Marketou is a postdoctoral researcher at the Department of Law at the University of Luxembourg. 

‘Local Meanings of Proportionality’ is available at Cambridge University Press

Suggested Citation: Afroditi Marketou, ‘Author Interview: Local Meanings of Proportionality’ IACL-AIDC Blog (15 March 2022) https://blog-iacl-aidc.org/just-published/2022/3/15/author-interview-local-meanings-of-proportionality.