Beyond Proportionality: Thinking Comparatively about Constitutional Review and Punitiveness

Bomhoff, Jacco

doi:10.1017/9781316691724.008

Cited by 3 publications

(4 citation statements)

References 15 publications

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“…Such research may also compare how far left-and right-wing versions of identity politics share commonalities and how far they differ. 42 Moreover, it is suggested here that further empirical research is needed in order to explore both the causes and the effects of such rules, for example in order to tackle the problem of a possible reverse causality (which in quantitative research leads to the problem of endogeneity).…”

Section: Identity Politics and Its Use In A Nutshellmentioning

confidence: 99%

Identity politics and comparative law

Siems

2023

Maastricht Journal of European and Comparative Law

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Identity politics refers to the notion that social and collective identities should be a fundamental focus of politics. Comparative law provides at least two points of connection to identity politics. First, rules in many countries address topics of identity politics, such as gender, race, religion and indigenous cultures. These rules can therefore be compared using the tools of comparative law; yet we still lack work that presents these topics in a cross-cutting and comparative manner. Second, identity politics can be seen as a challenge to comparative law. Notably this is the case for forms of exclusionary identity politics that apply an essentialist position of group identities and may argue against the ability to understand or transplant legal ideas and rules across identity groups. This paper suggests that comparative lawyers should push back against such trends and their negative impact on comparative law.

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Section: Identity Politics and Its Use In A Nutshellmentioning

confidence: 99%

Identity politics and comparative law

Siems

2023

Maastricht Journal of European and Comparative Law

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“…In the light of these complexities, each of them raising questions of real practical and normative significance, it is not surprising that even those sympathetic to retributive approaches of punishment have in recent years taken care to acknowledge the limitations of appeals to proportionality, 'getting proportionality into perspective' by refining or qualifying the significance of the concept in a range of ways (Tonry 2020a). For example, Antony Duff has suggested that framing the question of justice in punishment in terms of appropriateness or the aspiration to avoid disproportionate punishments may have advantages over straightforward appeals to proportionality, 3 which may blur our appreciation of the broader meaning of punishment which is central to communicative 3 Duff's suggestion resonates with Jacco Bomhoff's argument that, in the constitutional sphere, appeals to proportionality are best understood as expressing a sensibility of intolerance for wrong outcomes (Bomhoff 2018).…”

Section: Imentioning

confidence: 99%

“…What can comparative analysis 16 teach us about which features of context and system matter, given the very uneven realization of the aspiration to limit and temper punishment via the appeal to proportionality? Almost half a century after its inception, the practical impact of the justice model presents a mixed picture, and in liberal market countries such as It is tempting to interpret this as a reflection of Jefferson's early invocation of 'the jury's estimation' of proportionality, and indeed there is persuasive evidence of the role played by 16 The fruitfulness of such a comparative analysis also pertains in relation to constitutional appeals to proportionality, which Bomhoff (2018) has persuasively argued to raise important 'comparative comparative' questions about whether, for example, systematic differences in the shape and efficacy of appeals to proportionality in criminal justice help to explain the development and impact of proportionality tests in constitutional law, and vice versa.…”

Section: Contextualising Proportionalitymentioning

confidence: 99%

Getting Proportionality in Perspective: Philosophy, History, and Institutions

Lacey¹

2021

Crime and Justice

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This essay revisits the conceptual debates about proportionality and its moral and political force, setting these debates in historical and institutional context. It argues that the conceptual, moral, political and practical questions about proportionality are inextricably linked, and that this insight should lead us away from the dominant conception of proportionality as a moral precept and towards a political conception of proportionality which is inevitably shaped by prevailing conceptions of what proportionality is for and, in modern democracies, is grounded in democratic practices and the institutional structure of democratic states. This insight has important implications for the prevailing disciplinary division of labour in the criminal justice field, calling into question whether the tendency to separate conceptual and philosophical from social theories of punishment is appropriate. In conclusion, the paper considers the conditions under which stable constraints on the state's power to punish, and accountability mechanisms adequate to guaranteeing the fittingness of punishment by reference to democratically endorsed standards -which I take to be the key animating concerns of contemporary appeals to proportionality -are most likely to be realised, and conversely where they are likely to be most under threat. This I take to be both an important issue in itself, and a case study in the interaction between concept and context.

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“…Typically, countries are classified into broad institutional baskets that correlate loosely with punishment outcomes (see Brodeur, 2007;Lacey, 2008;Neapolitan, 2001;Siems, 2016;Sutton, 2000Sutton, , 2004. For example, countries with greater incarceration rates tend to have market economies Dignan, 2006a, 2006b), non-plurality voting systems (Bomhoff, 2017;Lacey, 2012), and inherited the English common law (D'Amico and Williamson, 2015). 4 Such schemas reflect broad groupings of institutional characteristics that often correlate with one another.…”

Section: A N I E L J D ' a M I C O A N D C L A U D I A W I L L I mentioning

confidence: 99%

The punitive consequences of organizational structures in England, France and the United States

D’Amico

Williamson

2018

Journal of Institutional Economics

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We develop a framework for understanding how legal structures relate to imprisonment. We hypothesize that relatively more hierarchy within criminal justice institutions, compared to commercial law, fosters higher rates of incarceration. Our framework predicts that incarceration reflects asymmetric opportunities for rent seeking across differently organized legal institutions. Instead of comparing criminal justice institutions across nations in absolute terms, we investigate the relative degrees of institutional centralization across legal spheres. To provide support, we document the separate historical experiences that shaped divergent organizations across England and France. Within each country, criminal legal institutions developed inverse organizational traits from commercial legal processes. As a result, the contrasting organizations created asymmetric opportunities for rent seeking. Divergent contemporary outcomes can be understood by recognizing these initial organizational choices, the relative opportunities they created, and their subsequent path dependencies. We document contemporary England, France, and the United States’ incarceration trends and penal outcomes to provide empirical support.

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Beyond Proportionality: Thinking Comparatively about Constitutional Review and Punitiveness

Cited by 3 publications

References 15 publications

Identity politics and comparative law

Identity politics and comparative law

Getting Proportionality in Perspective: Philosophy, History, and Institutions

The punitive consequences of organizational structures in England, France and the United States

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