7 - Searching for a ‘Species of Sympathetic Magic’

Summary

The enthusiastic embracement of proportionality by Greek lawyers has defied the actual practice of judicial review. While proportionality is venerated as a fundamental rights principle, it failed in establishing a new paradigm of rights and judicial review. In order to make sense of proportionality in this context, I propose to take its meaning as a transplant seriously. Nelken observes that, in many cases, legal transfers do not fit an existing social situation, but rather correspond to an imagined local future. This is the case when their goal is social change, namely, when they are commonly perceived by legal actors as legal transplants. In this chapter, I argue that, like other legal transfers in Greek law, proportionality has enjoyed a value in itself, as part of an imported constitutional civilisation. As such, it has been expected to bring about legal and even social change. In other words, proportionality has expressed domestic lawyers’ belief in the possibility of law to act on society, ‘in what is almost a species of sympathetic magic’.