Theme: justice
Text to refer to: Antigone by Sophicles
Written Explanation:
After reading Sophocles’ Theban Play: Antigone, I found myself questioning the concept of a just society. With Sophocles’ representation of injustice in Antigone in mind, I sought to find similar examples of injustice in the modern day through the topic: ‘The old adage of an ‘eye for an eye, a tooth for a tooth’ should be the cornerstone of the law in a just society’. Research into the topic led me to explore the fascinating and conflicting systems of restorative and retributive justice. In order to tackle the broad issue of a just society, I attempted to focus on the negative consequences of retributive justice and the local problems people from these nations present to Australia.
Posing as the President of the Monash University Student Law Union, my persuasive article, titled ‘Should ‘an eye for an eye’ should be the cornerstone of law in a just society?’ is aimed to be an inclusion in a monthly university law journal. My choice as being a writer with a high profile aimed to add a sense of authority to the contentious issue. I chose this particular medium of a university law journal because the target audience would not only be educated in the principles of law, but would also show interest in the comparisons I have made between alternate justice frameworks and the problems they may pose Australia. My article’s purpose is to show that the legal systems in countries practicing retributive justice undermine the formation and stability of a just society because of the severe consequences on the innocent. Furthermore, I showed that the issue also relates locally to Australia by drawing parallels between immigration and a just society through restorative justice.
Should ‘an eye for an eye’ be the cornerstone of law in a just society?
Revenge. It is perhaps the most savage quality of the human race. It has the power to not only turn two close friends against each other, but also turn two nations to war. Despite the momentary satisfaction it may bring, the consequences afterwards never make it seem worthwhile. In spite of their aftermath, revenge and retribution are unfortunate human qualities that have survived, expressing society’s darker side for over a millennia. The age-old Biblical axiom, ‘an eye for an eye’ illustrates humankind’s early desire for justice through acts of retaliation, without any consideration of the aftermath. This adage, when viewed as a model or cornerstone for a just society, raises serious ethical, moral and social questions.
A just society is one in which all people, with no exceptions, have the rights, freedoms and capacity to access resources and services to enhance their wellbeing without any humiliation; and where the most underprivileged and disadvantaged members of society are given extra support to ensure such access. Most nations around the globe, including Australia, aim to create a just society through the means of a system of ‘restorative justice’, whereby offenders are encouraged to reflect on their actions and experience remorse through rehabilitation, community service or separation from society, whilst victims are usually compensated through monetary means. However, there is an alternative to this widely accepted model of the justice system.
The principle of ‘an eye for an eye’ was first proposed by the ancient Babylonians, and was later reiterated in the Old Testament (Hebrew Bible) and the Qur’an. The principle aims to ensure that an offender committing a crime should receive a punishment that is equal in severity to the crime, with the hope that the victim or their family is appeased with this punishment. This principle, known as ‘retributive justice’ in modern times, is currently included under the umbrella of Shari’ah Law, in the law and justice frameworks of many Islamic nations around the world. In a country such as Australia, many would consider the option of retributive justice to be confronting as it raises a wide range of issues: from the applicability of monetary fines for petty crimes, to the introduction of capital punishment in more serious cases.
In countries such as America, which have a law and justice model that lies in between restorative and retributive justice, it is shown often that a cleverly constructed case from a strong lawyer can cause an innocent to found guilty of murder and sentenced to an unnecessary death, simply for being in the wrong place at the wrong time. Whilst America’s system of capital punishment, which echoes the principle of an ‘eye for an eye’, may be right more often than not; however in the cases where it is wrong, innocent lives are lost. In contrast, an incorrect decision in a restorative court can be brought to justice without any lives ever being lost.
Shari’ah Law, the law set in many Islamic nations in the Middle East and Africa, is another contentious example where the miscarriage of justice can not only lead to the disadvantage of the falsely accused, but it can also lead to the formation of an unjust society. One aspect of Shari’ah Law, known as Qisas, promotes retribution as the method of achieving justice in society. In Qisas, petty crimes, such as the stealing of a loaf of bread, are dealt with in a very serious manner with punishments such as the removing of fingers or entire hands of the accused commonplace. Any miscarriages in ‘justice’ may leave an innocent person blind, deaf, unable to walk or even dead. Furthermore, both the wrongly and rightly accused are publically ‘branded’ as criminals due to their visible disabilities, and hence, are humiliated, victimized and socially isolated for the rest of their lives. These two issues directly contradict the notion of a ‘just society’, as being a place where humiliation does not occur through the fight for justice. Such examples are the result of principles such as ‘an eye for an eye’ being the cornerstones of a justice system.
Retributive justice can also be linked to many African tribal communities throughout in countries such as Somalia, Kenya and South Africa. In many of these isolated communities, the principle of ‘an eye for eye’ has been the foundation for justice for hundreds of years. Similarly to the Qisas, justice in these tribal communities relies on principles of retribution, resulting in many unfair and incorrect punishments being dealt by chieftains. A recent example of miscarriages in justice occurred earlier this year in Somalia, where a man was accused of murdering an elderly man of another tribe was stabbed to death in a public execution. Not only did was the accused man later to be found innocent, but the affair sparked a tribal war that lasted nearly three weeks, resulting in numerous deaths and injuries to members of both tribes. Freedom and fairness activists, such as Desmond Tutu, have been calling for tribal justice to be replaced with a system similar to restorative justice for decades: "To take a life when a life has been lost is revenge, not justice". However, their calls for a fair and just Africa through the ending of retributive justice have been rejected by most chieftains.
Australia is known to be one of the world’s most multicultural nations, with over 20% of Australia’s population comprising of immigrants and refugees. In recent years, there has been an exponential influx of immigrants and refugees from African and Middle Eastern nations, many of which previously practice retributive justice. This poses the Australian justice system with new and unique challenges. As the population of people with a background of retributive justice increases, does the current restorative justice system need to be adapted to the current situation in order to maintain a just society in Australia? Currently, in societies where retributive justice is practiced or partially practiced, miscarriages in justice are not only more severe on the innocent, but the formation of an unjust society can also result. If Australia were to change its current, fair and equitable system of restorative justice to simply appease the minorities from retributive justice systems, then one can only expect the same undesirable results for Australia.
Indian pacifist, Mahatma Gandhi, adapted the phrase ‘an eye for an eye’ when describing and summarising the consequences of building a justice system on the ideas of retribution: “An eye for an eye makes the whole world blind.” Through his successful ply for justice against the British, he tried to show that if everyone exacts revenge for a wrong done to them, the repercussions would be that society will be bent on destroying each other and the ultimate unjust society will be formed. The consequences on innocent people, through laws approving of capital punishment, the methods proposed in the Qisas or even the century-old ways of tribal African communities, are nullified when restorative justice is considered. Approving of ‘an eye for an eye’ as a cornerstone for law in a society such as Australia would be approving legal revenge and retribution, and would be approving for the formation of an unfair and unjust society.
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