Source: (2008) Oxford Journal of Legal Studies. 28(1):57-71.
The lex talionis of the Old Testament has been widely perceived—
understandably, but mistakenly—as a barbaric law of retribution in kind. It is better
understood as a seminal expression of restraint and proportionality as moral
principles of punishment. This has been recognized from the earliest times. Over
the intervening centuries, the lex talionis has lost neither its moral significance
nor its penal relevance. This is reflected in H.L.A. Hart’s synthesis of modern
retributivist and utilitarian theories of punishment and, again, in contemporary
Canadian law through the recognition of proportionality as the fundamental
principle of sentencing under the Criminal Code. The tension between this fundamental
principle and Canada’s increasing resort to mandatory minimum
sentences of imprisonment is examined briefly in this light. (author’s abstract)
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