The Place of Proportionality in Penal Theory: Or Rethinking Thinking about Punishment

TY - CHAP

T1 - The Place of Proportionality in Penal Theory

T2 - Or Rethinking Thinking about Punishment

AU - Matravers, Martin David

PY - 2019/11/15

Y1 - 2019/11/15

N2 - The idea that the severity of punishments ought to be proportionate to the seriousness of the crime is an established and central feature of much of the literature on the justification of punishment of the last several decades. Yet, in practice, sentencing is an inexact science and the project of developing metrics of both penal severity and crime seriousness is burdened by substantial theoretical difficulties. This essay argues that the focus on an individualistic, moralized, account of criminal law exacerbates these issues by both making proportionality more central than it need be in penal theory and the metrics harder to determine. In the place of such an account, it sketches a picture of criminal law and punishment as an institution of public policy addressed to the need to sustain the fragile achievement of the modern liberal democratic state. The bulk of the essay tries to show how the questions of metrics and of proportionality appear in such a political theory and to suggest that they do so in ways that allow us to overcome some of the difficulties that afflict current theorizing about punishment.

AB - The idea that the severity of punishments ought to be proportionate to the seriousness of the crime is an established and central feature of much of the literature on the justification of punishment of the last several decades. Yet, in practice, sentencing is an inexact science and the project of developing metrics of both penal severity and crime seriousness is burdened by substantial theoretical difficulties. This essay argues that the focus on an individualistic, moralized, account of criminal law exacerbates these issues by both making proportionality more central than it need be in penal theory and the metrics harder to determine. In the place of such an account, it sketches a picture of criminal law and punishment as an institution of public policy addressed to the need to sustain the fragile achievement of the modern liberal democratic state. The bulk of the essay tries to show how the questions of metrics and of proportionality appear in such a political theory and to suggest that they do so in ways that allow us to overcome some of the difficulties that afflict current theorizing about punishment.

U2 - 10.1093/oso/9780190070595.003.0004

DO - 10.1093/oso/9780190070595.003.0004

M3 - Chapter

SN - 9780190070595

SP - 76

EP - 96

BT - Of One-eyed and Toothless Miscreants

A2 - Tonry, Michael

PB - Oxford University Press

ER -