Giving content to the principle of proportionality: happiness and pain as the universal currency for matching offence seriousness and penalty severity

Bagaric, Mirko and McConvill, James 2005, Giving content to the principle of proportionality: happiness and pain as the universal currency for matching offence seriousness and penalty severity, Journal of criminal law, vol. 69, no. 1, pp. 50-74.

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Title Giving content to the principle of proportionality: happiness and pain as the universal currency for matching offence seriousness and penalty severity
Author(s) Bagaric, Mirko
McConvill, James
Journal name Journal of criminal law
Volume number 69
Issue number 1
Start page 50
End page 74
Publisher Vathek Publishing
Place of publication Dalby, England
Publication date 2005-02
ISSN 0022-0183
Keyword(s) sentences (criminal procedure)
fines (penalties)
punishment
criminal procedure
correctional law
criminology
law -- philosophy
Summary The principle of proportionality prescribes that the punishment should equal the crime. It is one of the most important principles of sentencing. Yet, despite its widespread acceptance it offers no meaningful guide to sentencing. Hence penalty levels fluctuate greatly between jurisdictions and within jurisdictions. This is because there is no universally agreed criterion for measuring offence seriousness or penalty severity. This article suggests that the appropriate criteria for matching offence seriousness and penalty severity is the level of unhappiness or pain stemming from each of these impositions. Thus, for example, the level of pain meted out to a rape offender should equal the level of pain caused to a rape victim. Emerging scientific studies on human well-being and happiness show that human beings are similarly built in terms of the experiences that are either conducive or inimical to well-being. This commonality provides a strong foundation to be confident to make reasonably accurate predictions concerning the extent to which adverse events, such as being the victim of a criminal offence or subjected to a form of criminal sanction will stifle human flourishing. This will then allow us to match accurately offence seriousness and penalty level.
Language eng
Field of Research 180120 Legal Institutions (incl Courts and Justice Systems)
HERDC Research category C1 Refereed article in a scholarly journal
Copyright notice ©2005, Vathek Publishing Ltd
Persistent URL http://hdl.handle.net/10536/DRO/DU:30003339

Document type: Journal Article
Collection: School of Law
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