The Chimera of Proportionality: Institutionalising Limits on Punishment in Contemporary Social and Political Systems
| Published date | 01 March 2015 |
| DOI | http://doi.org/10.1111/1468-2230.12114 |
| Date | 01 March 2015 |
The Chimera of Proportionality: Institutionalising
Limits on Punishment in Contemporary Social and
Political Systems
Nicola Lacey*and Hanna Pickard**1
The concept of proportionality has been central to the retributive revival in penal theory, and
underlies desert theory’s normative and practical commitment to limiting punishment. Theories
of punishment combining desert-based and consequentialist considerations also appeal to pro-
portionality as a limiting condition. In this paper we argue that these claims are founded on an
exaggerated idea of what proportionality can offer, and in particular fail properly to consider the
institutional conditions needed to foster robust limits on the state’s power to punish. The idea
that appeals to proportionality as an abstract ideal can help to limit punishment is, we argue, a
chimera: what has been thought of as proportionality is not a naturally existing relationship, but
a product of political and social construction, cultural meaning-making, and institution-building.
Drawing on evolutionary psychology and comparative political economy, we argue that phi-
losophers and social scientists need to work together to understand how the appeal of the idea
of proportionality can best be realised through substantive institutional frameworks under par-
ticular conditions.
Recent scholarship on punishment in developed countries has been much
preoccupied with the turn away from rationales of punishment based on its
supposed rehabilitative effects, and with the revival of retributivism in the
modernised form of ‘just deserts’ or ‘the justice model’. Like all forms of
retributivism, desert theory purports to offer a clear criterion defining the
fittingness of penalties by reference to a particular offence by a particular
offender. On this theory, punishment is justified in response to, by reason of,
and in proportion to, the offender’s desert. Desert, in turn, is premised on his
or her blameworthiness, which is generally understood in terms of a combi-
nation of harmful or wrongful conduct and culpability for that conduct: cru-
cially, the ensuing punishment must be proportional to or commensurate
with2that culpability, thereby curtailing any tendency towards injustice in the
*Departments of Law and Social Policy and Gender Institute, London School of Economics.
**Department of Philosophy, University of Birmingham.
1 We would like to thank Joshua Hordern, Victoria McGeer, Ian Phillips and James Q. Whitman,
as well as the MLR editors and referees, for very helpful comments on earlier drafts of this paper
and David Soskice, as well as participants at the McDonald Ethics Conference 2013, and at a New
York University Criminal Law Faculty Seminar, for very useful discussion of its argument. Hanna
Pickard’s research is funded by the Wellcome Trust [grant number 090768].
2 The concepts of proportionality and commensurability are interchangeable: we focus on propor-
tionality both because of its salience in the penal theory literature, and because of its analogous
deployment in other areas such as human rights, and public, international and private law across
many jurisdictions. For key examples amid an extensive literature, see R. Alexy, A Theory
of Constitutional Rights (Oxford: OUP, Julian Rivers trans, 2002); A. Barak, Proportionality:
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© 2015 The Authors. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(2) MLR 216–240
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form of punitive excess. A large literature has accumulated spanning a number
of key questions about the justice model across a number of disciplines: philo-
sophical questions about the conceptual shape and normative justification of
desert-based punishment;3legal and criminological questions about the best
ways of realising the aspiration to deliver just deserts within legislative, sen-
tencing and other criminal justice arrangements;4and sociological and political
science questions about both the origins of the revival of retributivism and its
effects.5
Within this last genre of scholarship, it is widely acknowledged that, in
countries such as the UK and, particularly, the USA, the aspiration of many
proponents of the retributive revival6to place clear limits on punishment by
ensuring proportionality has not been fulfilled. Moreover, punitive rationales
have in practice continued to be shaped by consequentialist considerations
such as incapacitation and deterrence, with consequentialist and retributive
considerations often blurred not only in public debate and political discourse
but also in sentencing practice. Yet other countries that embraced the justice
model, notably Sweden, avoided the ‘grade inflation’ in sentencing that
occurred in the US and the UK.7Views differ on just why this has been the
Constitutional Rights and their Limitations (Cambridge: CUP, 2012); J. Bomhoff, Balancing Constitu-
tional Rights (Cambridge: CUP, 2013): 10–30; R. S. Frase, ‘Excessive Prison Sentences, Punish-
ment Goals, and the Eighth Amendment: “Proportionality” Relative to What?’ (2004) 89
Minnesota Law Review; A. Ristroph, ‘Proportionality as a Principle of Limited Government’ (2005)
55 Duke Law Journal 263. G. Letsas, ‘Rescuing Proportionality’ in R. Cruft, M. Liao and M. Renzo
(eds), Philosophical Foundations of Human Rights (Oxford: OUP, forthcoming, 2014); I. Porat and M.
Cohen-Eliya Proportionality and Constitutional Culture (Cambridge: CUP, 2013); E. Thomas Sullivan
and R. S. Frase, Proportionality Principles in American Law: Controlling Excessive Government Actions
(New York: OUP, 2008); and G. Webber, The Negotiable Constitution: On the Limitation of Rights
(Cambridge: CUP, 2009). See also C. Steiker, ‘Prevention as a Limit on the Preventive Justice’ in
A. Ashworth and L. Zedner (eds), Prevention and the Limits of the Criminal Law (Oxford: OUP,
2013); our paper seeks to explain and elaborate Steiker’s conclusion that a ‘sense of skepticism about
proportionality’s promise combined with the daunting nature of the pitfalls it must negotiate should
give pause even to proportionality’s many enthusiasts’ (ibid, 213).
3 J. Murphy, Punishment and the Moral Emotions (Oxford: OUP, 2012); A. von Hirsch, Doing Justice
(New York: Hill and Wang 1976); A. von Hirsch, Censure and Sanctions (Oxford: Clarendon Press
1993); R. A. Duff, Punishment, Communication and Community (Oxford: OUP, 2001); D.
McDermott ‘The Permissibility of Punishment’ (2001) 20 Law and Philosophy 403; M. Matravers,
‘Is Twenty-first Century Punishment Post-desert?’ in M. Tonry (ed), Retributivism Has a Past: Has
It a Future? (New York: OUP, 2011); M. S. Moore, Placing Blame: A General Theory of the Criminal
Law (Oxford: Clarendon Press 1997); and C. Bennett, The Apology Ritual:A Philosophical Theory of
Punishment (New York and Cambridge: CUP, 2008).
4 A. Ashworth, Sentencing and Criminal Justice (Cambridge: CUP, 5th ed, 2010); A. Ashworth and A.
von Hirsch, Proportionate Sentencing: Exploring the Principles (Oxford: OUP, 2005); and A. von
Hirsch and N. Jareborg, ‘Sweden’s Sentencing Statute Enacted’ (1989) Crim L Rev 275.
5 Tonry (ed), n 3 above; D. Garland, The Culture of Control (Oxford: OUP, 2001); and J. Braithwaite
and P. Pettit, Not Just Deserts (Oxford: OUP, 1990).
6 Andrew von Hirsch’s Doing Justice n 3 above, would be a key example. Advocates of just deserts
have, of course, taken different views on the level of deserved punishment: ‘just deserts’ has been
able to embrace very different penal policies precisely because of proportionality’s silence on the
substance of criteria of equivalence – the very feature of the concept to which we draw attention
in this article.
7 J. Pratt and A. Eriksson, Contrasts in Punishment: An Explanation of Anglophone Excess and Nordic
Exceptionalism (Abingdon and New York: Routledge, 2013).
Nicola Lacey and Hanna Pickard
© 2015 The Authors. The Modern Law Review © 2015 The Modern Law Review Limited. 217(2015) 78(2) MLR 216–240
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