Comp. by: pg4118 Stage : Proof ChapterID: 0001546927 Date:3/5/12 Time:03:54:46 Filepath:d:/womat-filecopy/0001546927.3D269 16 Proportionate Sentencing and the Rule of Law Malcolm Thorburn * It is no easy thing to maintain a clear focus on both the forest and the trees. In the study of criminal justice, most writers restrict themselves either to the study of the detailed operation of particular systems or to a theoretical engagement with the foundational issues in the field. But over a career of many years, Andrew Ashworth has been a leader in criminal justice studies of both sorts. Indeed, it is a hallmark of Ashworth’s scholarship that even in his treatment of the most apparently narrow and technical topic, he makes clear the deep issues of principle that are at stake and how those principles ought to guide our thinking on the issue at hand. In this essay, I focus my attention on two of Ashworth’s most cherished principles of criminal justice: first, what Michael Tonry calls the ‘strong propor- tionality principle’ 1 and secondly, what I call the ‘state monopoly principle’. I argue that, taken together, these two principles set out a jurisdictional conception of criminal sentencing. That is, unlike most of his contemporaries who have jumped immediately to the question of how best to justify the punishment of criminal offenders, Ashworth has seen (correctly, in my view) that such questions may only be asked meaningfully once we have settled two conceptually prior questions: (1) who has jurisdiction to impose criminal punishment, and (2) what, specifically, do criminal punishers have the jurisdiction to do? That is, rather than moving directly to the abstract question ‘what do criminal wrongdoers deserve?’, he begins with the question ‘what role may the state legitimately play in setting and enforcing criminal norms within a legitimate constitutional order under the rule of law?’ Stated in this fashion, Ashworth’s position might not seem to be a startlingly novel approach to * Canada Research Chair in Crime, Security and Constitutionalism, Faculty of Law, Queen’s University, Canada. Thanks to the Social Sciences and Humanities Research Council of Canada for financial support and to Professor Bernd Schünemann and his Institut für die gesamten Strafrechts- wissenschaften, Rechtsphilosophie und Rechtsinformatik at Ludwig-Maximilians-Universität, Munich for providing a stimulating research environment in which to write this paper. Thanks to the participants in the All Souls Criminology Lecture at the University of Oxford where I presented an earlier version of this paper. Thanks also to Larissa Katz, Arthur Ripstein, and Lucia Zedner for valuable comments and discussion. Responsibility for any errors is mine alone. 1 M Tonry, ‘Proportionality, Parsimony and Interchangeability of Punishments’ in RA Duff, SE Marshall, RE Dobash, and RP Dobash (eds), Penal Theory and Practice (Manchester: Manchester University Press, 1994). OUP UNCORRECTED PROOF – FIRST PROOF, 3/5/2012, SPi