who or what has the proper role of deciding the proportionality of a criminal sanction or criminalising a conduct?

Question

is proportionality of a punishment decided by society itself ? if proportionality is basically "whatever society deems fit" then isn't the whole concept of proportionality undermined ? since it just becomes populism and society can just decide whatever punishment it wants to give or is the very addequacy of something subjective or relative to a culture i.e various countries have death penalty for what would be considered minor crimes in America (adultery etc) does that mean there is no objective comparison of lesser wrong between adultery and murder ?

TL;DR which part of the society should have the power to decide the proportionality of a criminal sanction or criminalisation ? is it completely the right or discretion of society to be offended by anything and also decide how they are to deal with it ?

Answer 1

In the UK the Parliament sets minimum and maximum penalties for crimes, in the USA Congress does this. There is a huge difference between direct democracy (what ypu incorrectly call populism), and represenrative democracy. In the latter, parties apply screening processes, like looking at qualifucations, ethics and standards, links to the area they represent, and getting a balance of skills in their party. The idea is that then representatives can take tough decisions, but know they will be held accountable at future elections.

The judiciary is independent from the legislative branch, in modern democratic systems, as part of the seperation of powers. This means that even MPs or Senators, or heads-of-state, can be tried for breaking the established laws. Judges can interpret laws to some extent, setting precedents. If the legislative branch feel they have gone too far from the spirit of the law, they can issue more detailed sentencing guidelines, mandatory guidance, or new laws and penalties.

Governance is about figuring out how to live well together, to build trust, and avoid riots and lynchings. Moral Foundations Theory suggests a Justice/Fairness axis to our thinking has evolved as essential to being able to live in societies. We can look to mirror neurons and intersubjectivity as underlying our capacity to mimic others, understand their minds, and as the basis for the most widespread moral principle that we call The Golden Rule, often given as 'Treat others as you wish to be treated'.

Culture, can be understood as enforcing boundaries prohibitions and taboos, by hijacking the evolved responses of shame and disgust. See: How do ethicists tackle the question "Is it immoral to have sex in public places?" Is it possible to use rational and empirical ideas to answer?

Different cultures establish different boundaries. In Jonathan Haidt's work he identified differences between herding cultures where honour and threat of feuds are used to deter theft of animals which can represent generations of wealth but be lost overnight, versus agrarian cultures where sowing harvesting and storing crops are essential leading to different priorities - so we can understand different attitudes to justice as being adaptive.

Durkheim identified the collective enactment of shared attitudes to sacred things, as core to social cohesion, and avoiding a personal sense of meaningless and anomie he associated with social decohesion. A good example is habeus corpus, no detention without trial. This emerged from a 1200s dispute by barons with the absolute authority of the king, where he was forced into a concession. This proved to be lastingly better than absolute monarchies elsewhere, for instance in France where reform was far less possible, so arguably revolution was inevitable. Habeus corpus is now acknowledged in nearly all modern democratic states, and has become a binding value also of the international community, with criticism of Russian Gulags and Chinese detention camps regardless of cultural differences. It's not just an accident that habeus corpus helps build trust and strong societies, we can link it to game theory: Is the tyrannicide perpetrated by William Tell morally legitimate? None-the-less some Islamic societies, and China, understand themselves as having a different discourse about the balance between individual and state, and that is a lively area for discussion. I make the case that almost uniquely bloody wars in China's early history, led to Confucian ethics and an emphasis on avoiding succession struggles, discussed here: Was philosophy/philosophers involved in any revolutions?

How do citizens influence Parliament/Congress? Obviously elections. Also riots and protests. But more importantly I'd say, is through pressure groups and what we call 'civil society', the Non-Gocernmental Organisations people put their energy into to amplify the voices of groups wanting to enact shared attitudes to sacred values, like say wanting prison reform, more or less gun control, etc etc. The process of contention and cultural discourse, is far more complex than 'mob rule'. At it's best political and criminal reform should be about pursuading an informed electorate and it's represenratives through open debate. That is the real gold standard, for leading to a just system in line with a society's values, and change in the direction for it to flourish.

Answer 2

This is a set of principles that might help finding your answer.

1. As individuals, survival is our deepest goal (cf. Thomas Hobbes, The Leviathan). Although other philosophers state that our goal is happiness, peace, self-reslization, power, etc., it's clear that none can be attained without the assumption of survival. So, even if my goal is to reign Poland, my acts, pragmatically, tend to survival.

2. Surrounding ourselves of a group, a society, increases our individual probabilities of survival. But such act involves a compromise: as a group, we need to determine and impose a set of rules that will allow surviving (see Hobbes). The most elementary rule is that the group has the priority of survival, against the individual, and this is due to simple majority: if a murderer or a thief risks the survival (or even the peace) of other members, the group will tend to kill or at least isolate the murderer or the thief.

3. The set of rules that allow survival are called morals, and they are essentially informal rules of survival and healthy social interaction. Informal because those rules are not written, they are part of the collective notion of survival, they evolve according to the group's needs and creativity.

4. This last element is key: if the group creates and follows rules that don't cohere with the environment, with nature, with its internal composition and dynamics, the group just perishes. This seem answering your question: the group self-regulate its rules.

5. In evolved societies, morals, the informal set of rules, is extended and expressed in other forms: religion, which contribute to a high level of social interaction and self-fulfillment; ethics, which are pure morals, expressed in a formal way; law and justice, which are coercive rules and mechanisms forcing the application of morals. Here, many argue that many laws are not moral. Yes, they are not, but this is just a contradictory behavior. An individual or a group acting upon contradictory rules just destroys itself. Contradiction is usually the result of social influential interests.

So, yes, it is each society, each social group, that determines, morally, ethically and legally, the extent of rules and punishment. Here, consider that inconsistent rules (inconsistent internally to the group or externally, with the environment) will just compromise the survival of the group. So, the parameters that determine all qualities, of all rules, should be its contribution to survival. If this doesn't happen, the group risks dissipation.

The price of imposing inconsistent, disproportionate, abusive, useless, etc. rules is the risk of group dissipation and the consequent decrease of the members' probabilities of survival.

Answer 3

The underlying question is "why do we need proportional punishment in the first place ?" and once it is answered OP's question kind of answers itself. The following development can be found in Cesare Beccarias's On Crimes and Punishments. Another part of the question is about the modality of fixing the concept of prortionality into law.

If the only objective of a justice system was to prevent and punish crime, the simple solution would be to punish every single offense by the death penalty, as painful as possible: dead people don't relapse, and no punishment will better detter potential criminals than the harshest possible one.

The problem is that every single citizen is also a potential convict, nobody is completely guaranteed to never break the rules and nobody wants to risk being wheeled for a misdemeanor (moreover if we factor in the risk of judicial error...).

It is also necessary to consider the cost of punishment for society. Executing a grown adult means they wont be able to produce anymore work although the cost of raising them to adulthood has alreday be paid in full. The same goes for emprisonment, with the added cost of running the penitenciary system (While this last argument is utilitarian in nature, it is not constrained to any economic system, even the most utopian of society needs labor to prosper).

We need to strike a balance between the need for protection from crime and the fact that we or our loved ones all might one day be in the position of receiving punishment, and the cost involved in running the justice system. The sanction must therefore be not too mild but not too harsh, in a nutshell: "proportional".

To use your example about adultery and murder, people want a form a of protection against both, but are usually less afraid of being cheated on than killed. People are also much more likely to commit adultery than murder. Therefore it seems reasonnable to punish murder in a harsh way, like sentence of death or sentence to life, because it has a high level of deterance (at least higher than a fine) and the risk of me facing the punishment is low. For adultery on the other hand a milder punishment seems fit (a better position in a divorce case, or a monetary reparation).

The problem of proportionality for every member of society can be formulated as such: "How much cost am i willing to pay and how much risk of receiving punishment am i willing to accept in exchange for a certain reduction of my risk to be victim of a crime?". And this is a question that each citizen can only answer for themselves, as it involves personal sentiment as to the gravity of each kind of offense, or if a given behavior is even an offense, and the harshness of different types of punishment in both nature and degree.

The sentiment of each citizen on this topic forms what the social contract theory calls "the general will". It is what the government sets to identify and fix into law (admitedly not perfectly). This modality differ from state to state and accross time.