| Abstract [eng] |
The Principle of Proportionality in the Contemporary Philosophy of Criminal Law The question of punishment’s aim and justification has been raised long before the emergence of the contemporary philosophy of criminal law. Within this sphere, remains the classical distinction between retributive and consequentialist theories, albeit no longer as absolute, since theories now tend to provide answers, supported by mixed presuppositions. The principle of proportionality is linked with retributivism partly due to large influence of Andrew von Hirsch’s theory (Hirsch 1976; 1985; 1996). This theory and its potency to remain influential is the object of this research, explored within the wider context of different formulations of the principle. Applying the basic classification of punishment theories (Fletcher 2001), the first part of the master paper distinguishes the main features of contemporary retributivism and their importance. The history of the term “proportionality” in the theory of law, which formed many versions of the principle is analyzed (Engle 2012; 2013). The inner differences among theories within contemporary retributivism are highlighted in the second part. The concept of the principle of proportionality in the theories which promote it most is compared with other retributivist and non-retributivist versions of the principle. The third part of the paper is dedicated to refuting the criticism, aimed at essential premises of proportionality theory. Finally, utilizing the analogical nature of the concept of proportionality (Lacey 2016) and employing the analysis of von Hirsch‘s model, based on the premises of the theory of measurement scales (Davis 2002a; 2002b), it is proposed to clearly separate the two principles, currently referred to by the term “proportionality”. The paper ends by demonstrating the efficacy and benefit of such separation. |
