Corpun file 25976 at www.corpun.com
The Week, London, 7 February 2015, p.15
The whip, the cane and the birch
The judicial flogging of Saudi blogger Raif Badawi has
provoked outrage around the world; yet not long ago we were
Click to enlarge
What was Badawl's sentence?
He was sentenced to 1,000 lashes -- to be administered in 20
weekly doses of 50 -- and ten years in prison for criticising
Saudi Arabia's powerful clerics and ridiculing the country's
morality police. This has been attacked as both inhumane and
completely out of scale with the alleged offence -- and not just
by Western liberals, but by many Muslims (see box) who say it
goes against sharia law. The Prophet Mohammed listed three crimes
as punishable by flogging: adultery, falsely accusing someone of
adultery, and drinking alcohol. Even in those cases, it isn't
meant to cause physical harm, says Abdulaziz AlGasim, a former
judge who now runs a law firm in Riyadh: it is intended as a
symbolic act; that's why the stick must have a specific
description and must not leave a permanent mark on the skin.
"In sharia, flogging as punishment was meant to be very mild
and doesn't aim to cause pain. But it is now being used as a tool
For how long was whipping a common practice in
From Roman times until the 19th century, minor offenders against
the law (even the insane) were subject to whipping, pillory and
the stocks, or, in the late 18th century, the cat-o'-nine-tails.
Things were even worse in Scotland, where corporal punishment
until the end of the 18th century involved dismembering,
branding, removing tongues, whipping, nailing people to the
gallows, and putting them in stocks. Only in the relatively
recent past did Britain outlaw the lash. The public whipping of
women was abolished in 1817; of men in 1862. However, the courts
retained the power to order whippings (of men) in cases involving
violent crimes until as late as 1948, and flogging persisted in prisons as a punishment for prisoners committing serious assaults on prison staff (ordered by visiting justices) until it was
abolished in 1967.
And what about the use of flogging in the Armed
It was once a common disciplinary measure (Winston Churchill
described British naval tradition as nothing but "rum,
sodomy, and the lash"). Aboard ships, the cat-o'-nine-tails
was used for severe formal punishment, while a "rope's
end" was used to administer on-the-spot discipline. In the
Napoleonic Wars, the maximum number of lashes that could be
inflicted on soldiers in the British Army reached 1,200, enough
to kill or disable a man. But there was growing concern that far
from being reformatory, flogging was ineffective -- or worse,
turned good men into bad and deterred recruiting. So in the first
half of the 19th century Britain outlawed flogging in the sepoy
(native) regiments of India. However, it was banned for British
soldiers only in 1881 (and for African soldiers in the colonies
in 1946). The Navy "suspended" flogging in 1879 but did
not ban it outright until 1957.
Why was it seen as ineffective?
In the mid-19th century a series of criminal law commissions
concluded that flogging was an unsuitable penalty because it
inflicted "an ignominious and indelible disgrace on the
offender rendered him callous", and "obstructed his
return to any honest course of life". Paradoxically, just as
it was going out of fashion as a punishment for adults, flogging
was coming into fashion as a punishment for juvenile offenders.
Victorian social reformers, increasingly concerned about the
practice of incarcerating youngsters in adult jails, came to see
it as the best substitute.
What was the thinking behind that?
That a key factor in juvenile offending was the desire among
adult boys to show they were "grown-up". So one way of
persuading them otherwise, the theory went, was to give them what
was seen as a boy's punishment -- offenders sentenced to birching
had the indignity of receiving the birch on their bare bottoms.
The practice was taken up with enthusiasm by the courts,
especially in Scotland, where the power to order birching applied
to boys up to the age of 16 (14 in England and Wales), and the
courts could specify the use of a (supposedly more severe)
leather tawse for culprits between 14 and 16. Judicial birching
was abolished with other forms of judicial corporal punishment in
1948, though almost as soon as it was gone, people were
campaigning for its reintroduction, and have continued to do so ever since. (Tory MP Tony Marlow did so as recently as the
1990s.) The Isle of Man only abolished the birch for juvenile
offenders in the early 1990s.
For how long were beatings permitted in schools?
The first attempt to get Parliament to end school beating came in
1669 when a "lively boy" presented a petition to
protest against "that intolerable grievance our youth lie
under". But though both teachers and parents were limited by
a law of 1860 to inflicting "reasonable" chastisement,
corporal punishment in schools continued. In 1783 Poland became
the first country to ban it in schools, but the practice was
banned in Britain's state schools only in 1987 and private
schools in 1999. Here, too, campaigners have sought to reverse
the ban. In 2005 there was an unsuccessful challenge to it by
headmasters of private Christian schools, who argued that it was
a breach of their freedom of religion. A 2008 poll of 6,162 UK
teachers by the TES found that one in five teachers would still
back the use of caning in "extreme cases".
Is it a similar story elsewhere?
Broadly, yes. In Delaware, the criminal code permitted judicial
floggings until 1972; even in liberal Canada, strapping of
prisoners in jails was allowed until 1970. Countries where
teachers still use force include the US: a Supreme Court ruling
in 1977 found that a constitutional ban on "cruel and
unusual punishment" applied only to judicial proceedings.
Currently some 33 countries still practise judicial corporal
punishment, including Indonesia (where a thief may be publicly
whipped), Kenya (where "village drunks" are caned), and
Singapore, where caning sentences are common. Saudi Arabia is one
of several Muslim countries that whip or cane suspected offenders
-- others include Iran, United Arab Emirates, Qatar and Yemen.
The use of the whip in Saudi Arabia
In an effort to make Saudi Arabia's courts conform more closely
to the demands of a modern nation state, the late King Abdullah
issued decrees in 2007 calling for legal and judicial overhauls
of the practice of flogging, and last November ordered a
committee to be formed to compile and codify sharia in Saudi
Arabia. But few changes occurred, not least because Saudi
Arabia's legal system isn't codified and doesn't rely on judicial
precedent, so individual judges have wide latitude in
interpreting religious texts. A legal code is thus unlikely to
end the imposition of flogging as a punishment, though it might
limit its use. For many, the Badawi case reflects the anxiety
Saudi rulers feel about displeasing the religious establishment.
Anyone in the regime who calls for even limited reform risks
losing power. "The lashing of Badawi," says Kamran
Bokhari, an adviser to the global intelligence firm Stratfor,
"is the symptom of a deeper malaise. The kingdom is sick,
and needs rejuvenation. But it is dealing with reformist dissent
along with shia dissent, jihadis, Isis and the rise of Iran, all
at the same time. There is only so much bandwidth."
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