Getting Proportionality in Perspective: Philosophy, History and Institutions

Abstract

This essay revisits the conceptual debates about proportionality and its moral and political force, setting these debates in historical and institutional context. It argues that the conceptual, moral, political and practical questions about proportionality are inextricably linked, and that this insight should lead us away from the dominant conception of proportionality as a moral precept and towards a political conception of proportionality which is inevitably shaped by prevailing conceptions of what proportionality is for and, in modern democracies, is grounded in democratic practices and the institutional structure of democratic states. This insight has important implications for the prevailing disciplinary division of labour in the criminal justice field, calling into question whether the tendency to separate conceptual and philosophical from social theories of punishment is appropriate. The paper considers the conditions under which stable constraints on the state’s power to punish, and accountability mechanisms adequate to guaranteeing the fittingness of punishment by reference to democratically endorsed standards—which I take to be the key animating concerns of contemporary appeals to proportionality—are most likely to be realised, and conversely where they are likely to be most under threat. This I take to be both an important issue in itself, and a case study in the interaction between concept and context.