ABSTRACT
I do not, and do not purport to do so. In formulating the distinction between 'ordinal' and 'cardinal' proportionality, I wanted to call attention to an important difference between the relative scaling of punishments within a penalty scale, and the overall dimensions of the scale itself (von Hirsch, 1985, ch. 4). I chose 'ordinal' as a convenient term for the former, (because I was speaking of the comparative ordering of punishments), and 'cardinal' as the term for the latter. It may well be that 'ordinal' has a different meaning in S.S. Stevens' quantitative measuring system, as Ms Davis asserts, but I am entitled to adopt a term and put it to different use-so long as I define that use adequately, as I believe I have done. (Indeed, this renaming process takes place all the time, even in the physical sciences. Physicists refer to the 'spin' of an electron, and to a certain subatomic particle, the quark, having or not having 'charm'. In using these terms, physicists are not misleadingly implying that the electron actually rotates like a top, or that a quark would be an engaging dinner-table companion. They are simply borrowing words, and redefining them.)
They are not. You and I can agree on the seriousness of, say, common residential burglary; yet you still may opt for a tougher penalty for the offence than I, for a variety of reasons. Some of those reasons may relate to our having divergent penal theories: I prefer desert, whereas you favour an incapacitative approach and thus opt for lengthy prison terms to restrain burglars from re-offending. Or alternatively, you and I may both support a desert model, and both agree that burglary is an offence of intermediate blameworthiness warranting a given seriousness-rating somewhere in the middle of the seriousness-scale; yet you may favour a higher penalty for the crime, because you opt for anchoring the penalty scale as a whole at higher overall severity levels-for example, because you may place less value than I on parsimony in anchoring the scale (see von Hirsch 1993, pp. 109-11).
