Andrew von Hirsch

in Censure and Sanctions

Published in print February 1996 | ISBN: 9780198262411
Published online March 2012 | e-ISBN: 9780191682339 | DOI:

Series: Oxford Monographs on Criminal Law and Justice


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Desert theory's notion of proportionality of sentence is still here today. Testimony to the theory's continuing influence is England's Criminal Justice Act of 1991. The statute, for the first time in that country, sets forth general principles for choosing sentence. The Act's statutory principles rely substantially on the idea of proportionality: that the sentence should be proportionate in its severity to the gravity of the offence. That proportionality has these attractions does not suffice, however, to establish its merits. Even if sufficient knowledge does not now exist to array penalties on preventive grounds, such knowledge might eventually be obtainable. Even if proportionality comports with our intuitive sense of fairness, one still needs to inquire why it is a requirement of justice. Desert theory also faces challenges — for example, from theorists who urge that proportionality-constraints should be relaxed for the sake of various other objectives. Such objections need to be addressed.

Keywords: desert theory; proportionality; England; Criminal Justice Act; statute; sentence; fairness; justice

Chapter.  1849 words. 

Subjects: Criminal Law

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