The question is: “should judicial punishment humanise and direct a criminal to a path of righteousness and should Lex Talioniswhich makes a person a mere tool for retributive justice be rejected?
by Dr. Ruwantissa Abeyratne
You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I tell you not to resist an evil person. But whoever slaps you on your right cheek, turn the other to him also…Mathew 5: 39-40
( November 21, 2017, Montreal, Sri Lanka Guardian) The other day, I went to the cinema to watch a current hit in North America, Murder on the Orient Express adapted to the cinema from Agatha Christie’s famous novel. A murder is committed on board the Orient Express during a lavish trip between Turkey and Europe. The renowned Hercule Poirot – the world’s greatest detective by his own pretentious admission – is on board when the murder is committed and takes on the case upon much persuasion although he is on vacation. Poirot’s central philosophy is that “everything is black and white…there is nothing in between”. Seemingly, this means in Poirot’s view “if one commits a crime against the law, one takes the consequences”. Poirot also believes that for murder to be committed the murderer’s soul must be fractured.
The murdered man on the train is an evil kidnapper of a young girl whom he murders after collecting the ransom from her parents. He escapes justice through a failed justice system. The mother who was pregnant at the time dies of a broken heart (resulting in the death of the fetus in the womb as well) and the father – a decorated military officer – commits suicide. At the time of the murder, there is a varied complement of 12 passengers, ranging from those claiming royalty, to a person masquerading as a professor of engineering allegedly on his way to deliver a lecture at a conference in Germany. It turns out at the end that this rag tag bunch were connected to each other, all profoundly affected by the murder of the young girl, and had hatched an elaborate plot to collectively murder the undesirable by each plunging a knife into the man while he was asleep, drugged.
At the deductive stage, Poirot is faced with the dilemma of his own “black and white” theory. The passengers took “just” revenge. The undesirable had to pay the consequences of his dastardly act which had resulted in three other deaths. This is vintage Agatha Christie who presents a conundrum to Poirot and challenges his own moral values. Poirot threatens to expose the whole bunch to the authorities. He follows the principle “Justitia fiat, ruat coelum!” or, “Let justice be done, though the heavens fall!”but later recants. He lets the passengers go, with the final comment that he has finally realised that the scales of justice are always not perfectly balanced, implying that justice is not as rigid as it seems to be – only administered through the courts. He tells the authorities that the murderer was an unknown person who escaped from the train after the murder.
Agatha Christie’s theme in the book is about the flawed justice system, unlike Dostoyevsky’s Crime and Punishment, where the author draws the reader to judge the characters and how characters judge each other and how they make amends for their crimes. It has no Kafkaesque illogicality and nightmarish oppressiveness. To the legal mind, Murder on the Orient Express is plainly about Lex Talionis or the law of retaliation – where the punishment has the same heinous quality as the original offence committed and resembles it – Lex Talionis queries the justification as to whether making one pay for his crime has a certain moral legitimacy over the rigours and ambivalence of established law. Lex Talionis is about retributive justice that reflects proportionate punishment along the lines of the famous “eye for an eye” principle contained in the Book of Exodus. Arguably, the main feature of Lex Talionis is quantitative and qualitative retribution rather than arbitrary and random acts of revenge.
Murder on the Orient Express | Official Trailer
Lex Talionis has an inherent principle of morality – that of deterrence – and a good example is the death penalty for murder. The question is: “should judicial punishment humanise and direct a criminal to a path of righteousness and should Lex Talioniswhich makes a person a mere tool for retributive justice be rejected?
The German philosopher Emmanuel Kant identified the right to impose criminal punishment as “the right of the sovereign as the supreme power to inflict pain upon a subject because a crime was committed by him,” and is of the view that “the penal law is a categorical imperative”, seemingly supporting Lex Talionis with the premise that “a person who kills must die”. In the 2013 case of Miller v. Alabama heard before the Supreme Court of the United States, Justice Antonin Scalia regretted the demise of the rehabilitative aspect of judicial punishment and decried the modern practice of “punishment for the sake of punishment”. Mike C. Materni of Harvard University in his article Criminal Punishment and the Pursuit of Justice recommends a system of checks and balances reflective of a restorative justice: “The restorative justice movement posits that mercy, as opposed to (vengeful) punishment, might bring us closer to justice. Appealing as this idea may be to some, I believe that completely abandoning the idea of punishment would stray too far both from the sentiments of the people (which include the instinct to punish offenders for their deserts) and from the necessity of protecting society from offenders. However, leaving mercy aside, the restorative justice approach merits to be taken into serious consideration for a particular feature it presents: restorative justice cares about the victim – a figure that, along with its needs, is utterly absent in the more traditional approaches to (and literature on) criminal punishment”.
The legal dimension to the death penalty lies essentially in the fundamental difference between the Natural Law and the Positive Law or, in layman’s terms, the difference between what “ought to be” and what “is”. David Hume, one of the more convincing classical positivists argues: “Take any action allowed to be vicious: willful murder, for instance. Examine it in all lights and see if you can find that matter of fact, or real existence, which you call vice. In whichever way you take it, you find only certain passions, motives, volitions and thoughts. There is no other matter of fact in the case. The vice entirely escapes you, as long as you consider the object. You never can find it, till you turn your reflection into your own breast and find a sentiment of disapprobation, which arises in you, towards this action. Here is a matter of fact; but, it is the object of feeling, not of reason.”
Murder on the Orient Express is about retributive justice when the justice system fails, exonerates the offender and releases him to the world. It has nothing to do with punishment while the offender is still in custody and is being tried. As Hume said, the vice escapes one until you find a sentiment of disapprobation. Perhaps this is what Poirot, with his black and white mind, realised and walked away.