An Eye for an Eye: Proportionality as a Moral Principle of Punishment

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.