Proportionality and Its Discontents

Law and Philosophy 41 (2):193-217 (2022)
  Copy   BIBTEX


In this paper, I defend a deflationary account of proportionality, which suggests that proportionality does not explain anything valuable about a system of punishment. Proportionality, rather, is a conventional means for presenting judgments about whether punishment fits the crime. A system of punishment is proportionate to the degree that it coheres with widely shared norms about punishment. There are many reasons such coherence could be valuable, not all of which are retributive. Hence, while on a deflationary view it may be important for a system of punishment to be proportionate, proportionality does not identify a uniquely important retributive value. I motivate the argument for a deflationary account of proportionality by canvassing some of the problems associated with both relative and absolute proportionality and examining how both legal theorists and courts have actually used the concept. I focus on the work of Doug Husak, and the jurisprudence of the Supreme Court of Canada.



    Upload a copy of this work     Papers currently archived: 91,349

External links

Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library

Similar books and articles

Proportionality and Self-Defense.Suzanne Uniacke - 2011 - Law and Philosophy 30 (3):253-272.
The constitutional structure of proportionality.Matthias Klatt - 2012 - Oxford, U.K.: Oxford University Press. Edited by Moritz Meister.
An Eye for an Eye: Proportionality and Surveillance.Kevin Macnish - 2015 - Ethical Theory and Moral Practice 18 (3):529-548.
Proportionality as a Universal Human Rights Principle.Jan Sieckmann - 2018 - In David Duarte & Jorge Silva Sampaio (eds.), Proportionality in Law: An Analytical Perspective. Springer Verlag. pp. 3-24.
A Puzzle About Proportionality.David Alm - 2019 - Res Publica 25 (2):133-149.
The principle of proportionality.Peter Hulsroj - 2013 - New York: Springer Verlag.
Proportionality, Constraint, and Culpability.Mitchell N. Berman - 2021 - Criminal Law and Philosophy 15 (3):373-391.
Gains and Losses in Balancing Social Rights.David Duarte - 2018 - In David Duarte & Jorge Silva Sampaio (eds.), Proportionality in Law: An Analytical Perspective. Springer Verlag. pp. 49-69.
Proportionality and Self-Interest.Nir Eisikovits - 2010 - Human Rights Review 11 (2):157-170.
Proportionality: from the Concept to the Procedure.Artūras Panomariovas & Egidijus Losis - 2010 - Jurisprudencija: Mokslo darbu žurnalas 120 (2):257-272.


Added to PP

32 (#485,568)

6 months
10 (#257,583)

Historical graph of downloads
How can I increase my downloads?