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1 Crim. L.F. 259 (1989-1990)
Proportionality in the Philosophy of Punishment: From "Why Punish?" to "How Much?"

handle is hein.journals/crimlfm1 and id is 270 raw text is: Winter 1990 Proportionality in the Philosophy of Punishment: From Why Punish? to How Much?* Andrew von Hirsch** INTRODUCTION R ecent philosophical writing about punishment has been devoted mainly to the why punish? question. While a variety of theories-utilitarian, reciprocity based, and expressive-have been put forward to answer this question, there has been wide agreement among philosophers that the insti- tution of legal punishment should be retained. Proponents of the various theories disagree chiefly why institutionalized punishment is necessary. The philosophical writings have paid comparatively little attention to the criteria for distributing punishments-particularly to the criteria for de- ciding how much to penalize convicted offenders.1 That issue, however, has * This article is a substantially revised version of a paper originally prepared for the International Conference on Justice in Punishment, Jerusalem, Israel, March 27- 31, 1988. ** Professor, School of Criminal Justice, Rutgers University, Newark, New Jersey, U.S.A.; Research Fellow, Faculty of Law, Uppsala University, Uppsala, Sweden; A.B., Harvard University 1956; LL.B., Harvard University 1960; LL.D. (hon.), Uppsala University 1988. I am grateful to my colleagues Andrew Ashworth, Richard Burgh, Michael Davis, R. A. Duff, Douglas Husak, Nils Jareborg, John Kleinig, Uma Narayan, Don Scheid, Martha Jane Smith, and Martin Wasik for their comments on this article. 1 There has been some notable philosophical writing on the criteria for criminal liability. See H.L.A. Hart, Punishment and Responsibility (1968). For a recent treat- ment, see D. Husak, Philosophy of Criminal Law (1987). Philosophers have, how- ever, generally been less concerned with the quantum of punishment imposed on 259