Proportionate punishments

JANICE ARNOLD CANADIAN JEWISH NEWS

“An eye for an eye” is “a distinctly Jewish contribution to the administration of justice in the western world,” said Supreme Court of Canada Justice Morris Fish, but it is also one of the most misunderstood.

The divinely ordained punishment, which is mentioned three times in the Torah, has come to be interpreted as primitive and cruel when, in fact, it is a very civilized concept, Fish said in his address at a Canadian Technion Society (CTS) dinner in honor of former federal cabinet minister and Organization for Economic Co-operation and Development (OECD) secretary general Donald Johnston. CTS honored Johnston for his devotion to tikkun olam.

Fish, a former Quebec Court of Appeal judge named to the Supreme Court in 2003, was the guest speaker at the event, held at Congregation Shaar Hashomayim. A friend of Johnston for more than 50 years, he and Johnston were law students together at McGill University.

In his lecture on “an eye for an eye,” Fish explained the connections that can be made between different historical and religious takes on the precept.

“The lex talionis [law of retaliation] has often been perceived – mistakenly and understandably – as a barbaric rule of retribution in kind. Read literally and from a modern perspective, that is entirely understandable, but nonetheless wrong,” Fish said.

To interpret “an eye for an eye” literally is to overlook its historical significance and “enduring moral relevance,” he continued.

Fish argued that the precept actually “introduced a policy of restraint and it sanctified proportionality as a moral principle of punishment.” Its effect was to “restrain wanton or excessive retaliation,” he asserted, rather than sanction vengeance.

Moreover, the Mosaic code never commanded “the punishment of one innocent person for the culpable conduct of another,” he said.

Fish pointed out that there is no inherent contradiction between lex talionis and the later Christian commandment to “turn the other cheek.”

Quoting St. Augustine, one of the great theologians of the early church, Fish said: “The old precept, as well as the new, is intended to check the vehemence of hatred and to curb the impetuosity of angry passion ... to put a restraint upon a revenge.”

And, Fish continued, “an eye for an eye” is still relevant today.

For example, since 1996, Canada’s Criminal Code has included a declaration that makes proportionality the fundamental principle of sentencing. “Parliament thus reaffirmed not only its relevance, but its centrality, to Canada’s system of criminal justice,” said Fish.

He added that some academics and others think proportionality may be imperiled by recent legislation. “The fear is that sentencing judges might be prevented in some cases, notably by a mandatory minimum sentence, from imposing what they would otherwise consider to be proportionate punishment.”

He added that his comment should not be taken as personal opinion. “As a sitting judge, I should not be thought to have expressed a decided view on any matters that may soon or eventually come before our court.”

CTS national chair Doreen Green noted that Fish has been referred to as the “mensch on the bench” for “his sensitivity and belief in the need for civility in the legal profession, his endearing sense of humor and his great tact,” among other attributes.

Evening honoree Johnston, who was the MP for Westmount (later St. Henri-Westmount) from 1978 to 1988, served in several cabinet posts in the governments of Pierre Trudeau and John Turner. He was later president of the Liberal Party of Canada. From 1996 to 2006, he was head of the OECD, the first non-European to occupy the post.

Today, he is a counsel at the Heenan Blaikie law firm, of which he was a founding partner in 1973, and is also a senior adviser to the new Geneva-based McCall MacBain Foundation, which is concerned with developing countries.

Johnston said he received a lot of support from the Jewish community during his time in politics, and that he has been very pleased to be helpful to the Technion. He said he became acquainted with Israel’s technological expertise while he was at the OECD, and Israel was an observer there.

“Technion’s work in alternative energy is critical for not only Israel, but the globe,” he said.

National CTS president Gary Goldberg told those assembled that Technion graduates comprise the majority of Israeli-educated scientists and engineers, and represent more than 70 percent of the founders and managers of the country’s high-tech industries. Eighty percent of Israeli companies listed on NASDAQ are led by Technion alumni, he said.

CTS has been raising awareness and funds in Canada for more than 60 years for the Technion Institue of Technology in Haifa, which was founded 85 years ago.

Proceeds from the Johnston tribute will go to a sustainable energy project at Technion.

For more national Jewish news, visit cjnews.com.

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