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Desert theory is the modern form of retributive philosophy, and like
retributism, it has various shades and hues. Andrew Von Hirsh, the leading
proponent of this doctrine, who authored, “Doing Justice” in 1976 in
the United States, opined that punishment has a twin justification, one of
which is founded on the intuitive connection between desertand punishment,
while the other one has underlying need for general deterence as its
launching pad.
The main thrust and chief contribution of desert theory is to the quantum
of punishment where proportionality is the touchstone, which is either
ordinal or cardinal. While ordinal proportionality is concerned with the
relative seriousness of offences among themselves, cardinal proportionality
relates the ordinal ranking to a scale of punishments and requires that the
penalty should not be out of proportion to the gravity of the crime. It is
the general perception that the rhetoric of desert is likely to lead to
greater severity of penalties. It is said to be based on the intuition that
punishment is an appropriate or natural response to offending. Cafeteria
approach is the one where the sentencer selects the sentence as this to be
most appropriate to each individual case. This allows the sentencer to
pursue his own idiosyncratic approach. This is obviously at odd with the
rule of law and substitutes for it the rule of individual judges.
Hybrid approach, first declaring a primary rationale and then allowing it
to be trumped by other rationales, has been hailed as a step forward to
ensure consistency. Sweden adopts “desert” as the primary rationale.
(Paras: 851-853); .....Allama Delwar Hossain Sayedee =VS= Government of
Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 76] ....View Full Judgment
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