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Constitutional Jurisprudence and Proportionality in Sentencing

Constitutional Jurisprudence and Proportionality in Sentencing 369 D. van Zyl Smit1 Constitutional Jurisprudence and Proportionality in Sentencing 1. THE CONSTITUTIONAL CONTEXT In 1688 the English Bill of Rights outlawed 'cruell and unusuall Punishments' 2 In this re- spect, the United Kingdom is the forerunner of the many modem states with written constitu- tions which empower courts to test legislative, executive and judicial decisions against an explicit constitutional standard. Variations on this prohibition of cruel and unusual punish- ments are found in several countries: prominent examples are in the constitutions of the United States of America,3 Canada4 and, indirectly, Australia.5 A wider formulation, which prohibits 'cruel, inhuman or degrading' punishment or treatment has been used in the new constitutions of South Africa6 and Namibia.7 Even in countries where such a clause is not contained explicitly in a bill of rights, it may be deduced from provisions protecting human dignity. Thus, for example, the German Federal Constitutional Court has declared that the injunction to respect human dignity en- compasses a prohibition of cruel, inhuman and degrading punishment g These direct and indirect prohibitions are supplemented by international instruments. The Universal Declaration of Human Rights,9 the International Covenant on Civil and Political Rights,10 the European Convention for http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png European Journal of Crime, Criminal Law and Criminal Justice Brill

Constitutional Jurisprudence and Proportionality in Sentencing

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Publisher
Brill
Copyright
© 1995 Koninklijke Brill NV, Leiden, The Netherlands
ISSN
0928-9569
eISSN
1571-8174
DOI
10.1163/157181795X00222
Publisher site
See Article on Publisher Site

Abstract

369 D. van Zyl Smit1 Constitutional Jurisprudence and Proportionality in Sentencing 1. THE CONSTITUTIONAL CONTEXT In 1688 the English Bill of Rights outlawed 'cruell and unusuall Punishments' 2 In this re- spect, the United Kingdom is the forerunner of the many modem states with written constitu- tions which empower courts to test legislative, executive and judicial decisions against an explicit constitutional standard. Variations on this prohibition of cruel and unusual punish- ments are found in several countries: prominent examples are in the constitutions of the United States of America,3 Canada4 and, indirectly, Australia.5 A wider formulation, which prohibits 'cruel, inhuman or degrading' punishment or treatment has been used in the new constitutions of South Africa6 and Namibia.7 Even in countries where such a clause is not contained explicitly in a bill of rights, it may be deduced from provisions protecting human dignity. Thus, for example, the German Federal Constitutional Court has declared that the injunction to respect human dignity en- compasses a prohibition of cruel, inhuman and degrading punishment g These direct and indirect prohibitions are supplemented by international instruments. The Universal Declaration of Human Rights,9 the International Covenant on Civil and Political Rights,10 the European Convention for

Journal

European Journal of Crime, Criminal Law and Criminal Justice – Brill

Published: Jan 1, 1995

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