Judicial Dictionary



Title Just Desert
Details

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