Beyond Proportionality: Thinking Comparatively About Constitutional Review and Punitiveness

Jacco Bomhoff 

London School of Economics - Law Department

June 24, 2016

LSE Legal Studies Working Paper No. 12/2016 

Abstract:      

US law is often cast as a notable outlier in two prominent fields of comparative studies. Among comparative constitutional lawyers, the US Supreme Court is famous for its apparent reluctance to embrace the kind of proportionality reasoning seemingly so familiar in Western Europe and in other liberal jurisdictions. And for scholars of comparative criminal justice, the United States stands out, as it has for the past 40 years or so, in terms of the numbers of individuals sent to prison, and in the harshness of the treatment meted out to offenders. Could these two phenomena be connected? By way of an indirect - and incomplete - answer to this question, this paper develops three lines of argument on the punitiveness-proportionality relationship. First, at least some of the factors that help explain cross-country variations in punitiveness, seem relevant also to an understanding of similarities and differences in relation to proportionality reasoning in constitutional jurisprudence. The paper discusses what comparative constitutional lawyers might take from leading work in this area by David Garland, Nicola Lacey, Michael Tonry, James Q. Whitman and others. Second, the comparative punitiveness literature shows how a more substantive understanding of ‘proportionateness’ could be developed, to move beyond the more formal, doctrinal preoccupations of much comparative constitutional law scholarship on proportionality. And third, the paper suggests that penal moderation and proportionality reasoning appear connected in terms of a deeper, underlying sensibility framed here as an ‘intolerance for wrong outcomes’. The paper proposes that future comparative work should aim to engage more directly with this underlying intolerance and its opposites.

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2800345