Anchoring the Penalty Scale

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

Anchoring the Penalty Scale

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In dealing with anchoring a scale, two main issues arise, which are considered successively in this chapter. The first concerns how the principle of proportionality constrains the scale's magnitude. The second relates to the anchoring of the penalty scale within applicable cardinal-proportionality constraints. Whether cardinal proportionality is satisfied, however, is not so much a simple yes-no matter as a matter of degree. Imprisonment (of durations varying with the gravity of the crime) is prescribed for all intermediate and serious offences. Minor crimes do not receive imprisonment. One would have to say that the scale raises questions comparable to the Draconian scale, but in a somewhat lesser degree. Thus, the upper bound of cardinal proportionality would be illustrated not so much by a bright line as by a shaded area, that grows progressively darker as one is speaking of more drastic penalty schemes.

Keywords: proportionality; penalty scale; cardinal-proportionality constraints; cardinal proportionality; imprisonment; Draconian scale; crimes

Chapter.  4663 words. 

Subjects: Criminal Law

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