Limits on Criminalization II: Proportionalities

Abstract This chapter is one of the three chapters that explore several principles that provide sources of limitation on the state’s power to criminalize and punish disobedience. This chapter focuses on limitations on the state’s power to criminalize and punish based on different principles of proportionality, primarily the principle of proportionality in punishment and the principles of proportionality and necessity in self-defense and war. This chapter discusses some special difficulties of applying the principle of proportionality in punishment in the context of disobedience offenses and sketches what it would mean to apply other principles of proportionality to the question of criminalization in the context of disobedience offenses, especially as they may manifest in the ideas of the de minimis defense and criminal law as a last resort, or ultima ratio.