Sentencing values and sentencing structures

AuthorTom O'Malley
PositionSenior Lecturer in Law, NUI, Galway
It may seem strange, even ominous, to begin a
presentation on sentencing by referring to nuclear weapons,
but I do so with a purpose. Some years ago, the General
Assembly of the United Nations sought an advisory opinion
from the World Court as to whether the use or threat of
nuclear weapons was in any circumstances permitted by
international law. By the narrowest of majorities, the Court
said that the use of such weapons would generally be
contrary to international law, but it could not reach a
conclusion about the legality of using nuclear weapons in
extreme circumstances of self-defence when the survival of a
state was at risk. In a dissenting opinion in which she
disagreed with the Court’s analysis, Judge Higgins said:
The judicial lodestar, whether in difficult
questions of interpretation of humanitarian
law, or in resolving claimed tensions between
competing norms, must be those values that
international law seeks to promote and protect.
In the present case, it is the physical survival
of peoples that we must constantly have in
This memorable statement provides a useful analytical
starting point for sentencing discourse as well. Here too, there
are several competing norms, perspectives and interests, and
here too, the lodestar must be the values animating the penal
130 Judicial Studies Institute Journal [3:1
1Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons (1996) 35 I.L.M. 809 at 938.
* Senior Lecturer in Law, NUI, Galway.
process. Sentencing values may not be so starkly obvious as
the protection of life identified by Judge Higgins in the
Nuclear Weapons case. But that should not deter us from
seeking some consensus on the matter. What I propose are
the traditional, so-called Enlightenment values of legality,
openness, justice, equality and coherence. Critical legal
theorists might fault this approach for preferring form over
substance. A central plank of critical theory, and one of its
more valuable contributions to contemporary policy debate,
is that apparently neutral concepts such as equality before the
law, due process and proportionate punishment often serve to
mask underlying structural inequalities and social injustice.2
Rhetorical commitment to neutral, equality-based principles
tends to sustain the status quo and seldom does much to
address cycles of disadvantage. Had critical theory been able
to construct a viable alternative to present orthodoxy, an
alternative that gave heightened recognition to pervasive
power disparities, many of us would gladly embrace it. That
it has so far failed to do this should not deter us from
injecting as much substantive justice as possible into existing
liberal values.
In our present endeavour to review the jurisdiction of
the criminal courts, we must grapple with that awkward
triangular relationship between substance, procedure and
structure. Delivering justice of the highest quality possible
must be our ultimate aim; that is the main issue of substance.
The challenge is to devise procedures and structures that will
best ensure the achievement of that aim. As the history of the
common law shows, even when tempered with equity,
substantive justice can easily be trumped by procedural and
2003] Sentencing Values and Sentencing Structures 131
2 The vast literature on this topic includes Hunter, Ingleby and Johnstone,
Thinking about Law: Perspectives on the History, Philosophy and
Sociology of Law, Chapter 4; Frug, “A Critical Theory of Law” (1989) 1
Legal Education Review 43; Unger, “The Critical Legal Studies
Movement” (1983) 96 Harvard L.R. 561; Tushner, “An Essay on Rights”
(1984) Texas L.R. 1363; Kairys (ed.), The Politics of Law:A Progressive
Critique; Kennedy, “Legal Formality” (1973) 2 Journal of Legal Studies

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