Abstract
In punishment, proportionality is the systematic mathematical relationship between the significance of the wrongdoing and the amount of punishment that may be imposed on the wrongdoer. In this chapter, Kershnar argues that there is no adequate equation for proportionality. The lack of an adequate equation rests on intuitions and the absence of a shared metric. If there is no equation for proportionality, then there is no proportionality. This is because if there is no equation for proportionality, then there is no general justification for proportionality. Purported justifications of punishment that lack proportionality—specifically, consequentialism and consent theory—are implausible. The lack of proportionality, then, is a threat to the notion that some punishment is justified and, more generally, non-consequentialism.
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Notes
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For a defense of this notion, see Kershnar (2018).
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- 5.
The idea for this case comes from Almasy (2013).
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There are still other problems with desert-justified punishment. First, there is the issue of whether anyone deserves anything. For an argument against this, see Kershnar (2021). Second, there is an issue of the time frame of punishment-justifying desert. For an exploration of this problem, see Husak (1990), Tadros (2011), and Kolber (2019).
- 7.
One underlying assumption here is that punishments can be cardinally ranked. Such a ranking satisfies reflexivity, symmetry, transitivity, and completeness. Completeness asserts that any two punishments can be ranked. There is an issue as to whether comparability requires commensurability, but it need not be addressed here. For a discussion of the relation between them, see Chang (2002).
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The example comes from Ryberg (2020).
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If desert justifies punishment and desert is in part comparative—the relation between people getting what they individually deserve—then facts about third parties might determine what punishment a wrongdoer ought to receive. However, this assumes that punitive desert is not purely non-comparative. For an exploration of comparative desert, see Miller (2003) and Kagan (2012). On a different version, proportionality depends on a population’s negative valuation of a crime. This also makes a proportional punishment depend on the facts about third parties. See Davis (1992).
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I am grateful to Neil Feit and Travis Timmerman for their extremely helpful comments and criticisms of this chapter.
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Kershnar, S. (2023). Proportionality Collapses: The Search for an Adequate Equation for Proportionality. In: Altman, M.C. (eds) The Palgrave Handbook on the Philosophy of Punishment. Palgrave Handbooks in the Philosophy of Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-11874-6_18
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