The chimera of proportionality: institutionalising limits on punishment in contemporary social and political systems

The concept of proportionality has been central to the retributive revival in penal theory, and is the main idea underlying desert theory’s normative and practical commitment to limiting punishment. Theories of punishment combining desert-based and consequentialist considerations also appeal to proportionality as a limiting condition. In this paper, we argue that these claims are founded on an exaggerated idea of what proportionality, in itself, can offer, and in particular fail properly to consider the question of what sorts of institutional conditions are needed in order to foster robust limits on the state’s power to punish. The idea that appeals to proportionality as an abstract ideal can help to limit punishment is, we argue, a chimera: what has been thought of as proportionality is not a naturally existing relationship, but a product of political and social construction, cultural meaning-making, and institution-building. Drawing on evolutionary psychology and comparative political economy, we argue that philosophers and social scientists need to work together to understand the ways in which the appeal of the idea of proportionality can best be realised through substantive institutional frameworks under particular conditions.