Retributivism and the (Lack of) Justification of Proportionality

The principle of proportionality has gained widespread adherence in the modern retributively-dominated era of penal theory. It has often been held that, if one subscribes to a retributivist theory, then one is also committed to proportionality in punishment (or at least to proportionately-determined...

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Bibliographic Details
Published in:Criminal law and philosophy 2021-10, Vol.15 (3), p.447-462
Main Author: Ryberg, Jesper
Format: Article
Language:English
Subjects:
Burglary
Crime
Criminal law
Criminal Law and Criminal Procedure Law
Ethics
Expressionism
Law
Law and Criminolgy
Legal History
Original Paper
Philosophy
Philosophy of Law
Theories of Law
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Summary:The principle of proportionality has gained widespread adherence in the modern retributively-dominated era of penal theory. It has often been held that, if one subscribes to a retributivist theory, then one is also committed to proportionality in punishment (or at least to proportionately-determined upper punishment constraints). In the present article, this assumption is challenged. It is shown that the inference from the fact that one offender has committed a more serious crime than another offender, to the conclusion that this offender should be punished more severely than the other, presupposes the satisfaction of two conditions: The Necessity Requirement and the Sufficiency Requirement. It is argued that modern expressionist accounts of retributivism fail to satisfy these requirements. Moreover, it is suggested that the satisfaction of these requirements constitutes a challenge for other retributivist theories. In so far as this is the case, the inference from retributivism to proportionality will be blocked.
ISSN:1871-9791
1871-9805
DOI:10.1007/s11572-021-09579-4