by Salahuddin Khan

Created on: October 26, 2008   Last Updated: December 07, 2008

I'm intrigued by the framing of this proposition. It seems to imply that punishment cannot be just if it is harsh or vice versa. I believe that punishments under Islamic law are indeed harsh but that doen't make them unjust. This technically places me on both sides of the proposition and I have to say I am completely comfortable with that.

Logically, taking any position in this debate, as often is the case in debates, we need to lay out arguments for the meanings of the words involved and then go on to argue the substance of the proposition that involves those words.

So, we're left to decide what we mean by "just" and what we mean by "harsh".

At its core, "just" has to do with balance, and justice is indeed often symbolized by weighing scales. In civil proceedings, justice is often guided by a consideration of damage mitigation to restore balance. Extrapolating this principle, modern western philosophy has led to the idea of "debts" to society and repayment of such debts are considered just. This seems like a reasonable posture but it isn't an absolute given. Islamic jurisprudence, for example, holds that while mitigation of damage is indeed a just response to a civil infraction against a plaintiff, there is no real concept of a "debt" to society in the matter of criminal justice. Instead, criminal justice is directed not at restoration of balance but rather the deterrence of imbalance and the preservation of societal integrity. We may disagree with this posture but it is far from a clear absolute that either is preferrable to the other.

Having said this, it is my belief that Western systems of justice are in a schizophrenic posture relative to this matter. There is a hankering for both deterrence and restitution. The result is manifest in the way punishments are designed. I believe one cause of this perspective is that Western society is sufficiently aware of the fallibiity of its own system of justice as to be concerned with the possibility of error in dispensing justice and that punishments which fit crimes are generally more lenient and more easily reversed.

However, a consequence of giving priority to restitution leads to a society with relatively large imprisoned populations who seem undeterred from committing crimes. The price paid by society may not be limited to the cost of maintaining these populations. Societies can succumb to general malaise and concern for personal safety or property might pre-occupy law-abiding citizens to an intolerable degree. Muggings,

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