Lex talionis

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Lex Talionis (Latin for "law of retaliation") is the principle of retributive justice expressed in the phrase "an eye for an eye," (Hebrew: עין תחת עין‎) from Exodus 21:23–27. The basis of this form of law is the principle of proportionate punishment, often expressed under the motto "Let the punishment fit the crime," which particularly applies to mirror punishments (which may or may not be proportional).

At the root of the non-biblical form of this principle is the belief that one of the purposes of the law is to provide equitable retaliation for an offended party. It defined and restricted the extent of retaliation. This early belief is reflected in the Code of Hammurabi and in the laws of the Old Testament (such as Exodus 21:23–25, Leviticus 24:18–20, and Deuteronomy 19:21). In reference to torts, the Old Testament prescription "an eye for an eye" has often been interpreted, notably in Judaism, to mean equivalent monetary compensation, even to the exclusion of mirror punishment. In other cultures, notable Islam, the code has been taken more literally; a thief may lose his left hand in punishment

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While Christianity, based on the word of Jesus in the New Testament, and other religions have brought the possibility of forgiveness and mercy into the picture, nonetheless legal systems continue to prescribe punishments to fit the crimes that continue to be committed. The Lex Talionis, while not the perfect principle, still ensures that society's response does not exceed the original wrong. The best solution, though, is that all members of society follow the social and legal norms and thus retributive justice is no longer needed.

Definition

Lex Talionis means in Latin “the law of retaliation.” The concept of “the law of retaliation” refers to the idea that punishment for a misdeed should be based upon some form of equivalence, rather than simply unrestricted or random revenge. The simplest expression of Lex Talionis is the biblical injunction of "life for life, eye for eye, tooth for tooth" in Exodus 21:23.

Usually we think of the goal of this law as a core element of early biblical justice. Lex Talionis however, goes back to about the twentieth century B.C.E., found in the Code of Hammurabi.

Hammurabi’s legal code

In 1901 C.E., a French explorer found at Susa an ancient set of Babylonian inscriptions containing 282 laws. This “code” asserts that it was enacted by Hammurabi, Babylonian king of the twentieth century B.C.E. Engraved on a block of black diorite nearly eight feet high, this is the earliest complete legal code known to history.

The code begins with direction for legal procedure and the statement of penalties for unjust accusations, false testimony, and injustice done by judges; then follow laws concerning property rights, loans, deposits, and debts, domestic property, and family rights. Penalties were imposed for injuries sustained through unsuccessful operations by physicians, and for damages caused by neglect in various trades. Rates are fixed in the code for various forms of service in most branches of trade and commerce.

Many of the laws were based on the principle of equal retaliation (Lex Talionis) — for example, a portion of the code reads:

If a man has caused a man of rank to lose an eye, one of his own eyes must be struck out. If he has shattered the limb of a man of rank, let his own limb be broken. If he has knocked out the tooth of a man of rank, his tooth must be knocked out.

Injuries of a poor man, however, could be atoned for in money:

If he has caused a poor man to lose an eye, or has shattered a limb, let him pay one maneh of silver.

Insofar as the advocacy of Lex Talionis is concerned, the Code of Hammurabi reminds us of the stern Jewish law of “An eye for an eye, and a tooth for a tooth.” (Exodus 21:23)

Indeed, it is likely that this principle was adopted wholesale by the Jews from their “captors,” and was one of many influences of the Babylonians upon Jewish culture. In effect, the laws of the code seek to protect the weak and the poor against injustice at the hands of the rich and powerful; the code is a remarkably just and humane set of laws for the time in which these laws were set forth.

Hammurabi's code of laws is almost entirely based on the principle of equal and direct retribution; it betrays the origin of law in retributive violence. Unlike direct retribution, however, the law is administered by the state or by individuals that cannot be victims of revenge in return. While revenge and retribution threatens to break down society as people take reciprocal revenge one another, revenge as it is embodied in law and administered by the state prevents mutual and reciprocal revenge from tearing the fabric of society.

Thus, the Lex Talionis is the underlying principle of this early effort to establish legal recourse when citizens suffer at the hands of wrongdoers.

Talmud and Torah

Talmud is ostensibly the corpus juris of the Jews from about the first century before the Christian era to about the fourth century C.E. But Talmud was always much more than this. The very word "Law" in Hebrew, Torah, means more than its translation would imply.

The Jew interpreted his whole religion in terms of law. To explain what the Talmud is we must first understand the theory of its growth, more remarkable perhaps than the work itself.

The Divine Law was revealed to Moses, not only through the Commandments that were found written in the Torah, but also through all the later rules and regulations of post-exilic days. These additional laws it was presumed were handed down orally from Moses to Joshua, thence to the Prophets, and later still transmitted to the Scribes, and eventually to the Rabbis. The reason why the Rabbis ascribed to Moses the laws that they later evolved was due to their intense reverence for Scriptures.

Perhaps the most difficult and longstanding problem for New Testament scholars studying second Temple Judaism is how much the later documents (the Mishnah and the Babylonian and Palestinian Talmuds) represent earlier thinking.

Exodus 21:23-25 says straightforwardly:

But if there is serious injury, you are to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise. (cf. Leviticus 24:17-22 and Deuteronomy 19:21)

The question is: should these punishments be applied literally or not? The preponderance of the evidence suggests a non-literal application.

First, the historical context of the ancient Near East must be considered. The law of retaliation in the Code of Hammurabi enlarged the scope of criminal law to include even the rich who had to suffer legally for their abuse of the lower classes or others of the same class. Judges 1:6-7 speaks of a petty king getting the same punishment that he imposed on other small kings he conquered. This implies that the law was actually enforced. However, this passage lies outside of the Torah, a legal context.

Also in the code of Hammurabi, it is not known whether the rich really died for the poor, when an indemnity was open to them. So it is likely that the law of "an eye for an eye" in ancient Near Eastern cultures was not actually carried out.

It remains unclear whether Lex Talionis [eye for eye] was ever intended to be used in practice anyway in Hammurabi’s Babylon. (Jackson 1973)

Monetary compensation was more frequent, especially when an upper class man (a freeman) attacked a lower class man (such as a slave). Also, in other “talion” laws of surrounding cultures, a monetary fine is the only penalty.

It seems more likely, then, that the law of retaliation in the Torah was not carried out literally, but it reflects an underlying principle of equal damages, a strong word picture that communicates that the compensation must be proportionate to the injury.

Also, from an overall reading of the Bible, it is clear that forgiveness was always an option (Leviticus 19:18 and Matthew 5:42-45). An eye for an eye stops the cycle of revenge that ruled in the ancient Near East.

Second, besides the larger historical context of the ancient Near East, passages in the Torah itself suggest an indemnity, not corporal punishments. Hints are seen in Exodus 21:18-19, 32; Numbers 35:32; Deuteronomy 22:19, 29. This is especially clear in the third version of the law of retaliation found in Deuteronomy 19:21.

In this context, the case involves a man who was falsifying his testimony. Since the lying witness did not literally injure the eye of the accused, his punishment should not be taken literally (Selman, 2003). Thus, the severe physical punishment in the Torah should possibly be interpreted in light of the softer options, also found in the Torah, like an indemnity.

Third, it is highly likely that the punishment of "an eye for an eye" in ancient Hebrew society is

a stereotyped formula that only states that the punishment must match the crime, but not exceed the damage done. … "An eye for an eye" might now read: "a bumper for a bumper, a fender for a fender." … The punishment was not an authorization for individuals to tell their opponents to hold still while they tried to even the score and punch out an equal number of their teeth. … This physical punishment was not even literally carried out in the context of a competent judge. (Kaiser 1983)

This was especially important in a private dispute, where tempers may flare and so make the retaliation exceed the damages (see Genesis 4:23-24).

This is again seen in Deuteronomy 19:21, the third version of Lex Talionis. The false witness did not literally maim the accused, but verse 21 mentions eye for an eye, tooth for tooth, or hand for hand. This means that the clause had become automatic and formulaic, without actually imposing the penalty.

The underlying principle of the words in the law of retaliation, therefore, is not literally taking an eye or a tooth, but equal compensation (Rosenbaum, 1930, 1972)

It must also not be overlooked that the punishment of physical retaliation, eye for eye, tooth for tooth, is never depicted in the Torah as actually being carried out. This is significant because on at least two occasions people were stoned for violating other laws (Leviticus 24:10-16 and Number 25:1-16). This silence on retaliation being carried out, when combined with the first four factors, may be enough to argue for a non-literal meaning of the words. That is, the words may express a formula or a principle of equal damages.

Thus, even if we assume that the law of retaliation was actually and physically carried out when it was first published in Exodus 21:23-25, Judaism later evolved towards the more humane monetary compensation, finding verses in the Torah that pointed in that direction. However, the evidence suggests that the three passages laying out the law of retaliation were not literally carried out; rather, the words stand for equality in punishment and damages.

The New Testament

Jesus corrected the literal interpretation of the passages on the law of retaliation. Matthew 5:38-39 says:

You have heard that it was said, ‘Eye for eye, and tooth for tooth’; But I tell you, Do not resist an evil person. If someone strikes you on the right check, turn to him the other also. (cf. Luke 6:29)

Jesus raises the stakes in personal injuries. He follows a command found in the Holiness Code, in which many verses have a universal application.

Leviticus 19:18 says, "Do not seek revenge or bear a grudge against anyone of your people, but love your neighbor as yourself. I am the Lord."

This is the general principle behind Matthew 5:38-39. This background verse in Leviticus is supported by Matthew 5:42-45, which says to love one’s enemies and to pray for them (cf. Luke 6:32). It is better to let go of the offense.

So to avoid misinterpretations or over-interpretations of the words of Jesus in Matthew 5:38-39, we should consider these interpretive guidelines: First, as usual with Biblical passages, they must be taken in historical context. Jesus lived in first-century Israel, and at that time the law of retaliation appears in a legal context, in a courtroom, not in a private dispute that was settled in private vendettas. The Mishnah, an early source of commentary on the Torah, was finalized in its written form at the end of the second century AD, but the oral traditions were transmitted long before that.

This passage from this repository of wisdom, seen in the context of bodily injuries, says that all disputes of this kind must be heard in a court:

Assessment [of injury] in money or money’s worth must be made before a court of law. (Baba Kamma 1.3, p. 332 in Danby’s translation).

At this time in Judaism, bodily injuries could be compensated with money. Also, verse 40 in Matthew chapter 5 confirms a legal context "if someone wants to sue you." Finally, Matthew 5:25 exhorts Jesus’ disciples to be reconciled with an adversary who is taking them to court.

So Jesus’ interpretation of the law of retaliation must be seen in a legal context. Thus, he proclaims in the two verses that it is better not to drag a neighbor, even an evil one, into court in a lawsuit. It is better to let the demand for retaliation go.

Second, the words themselves in the two verses appear in other contexts, and this can clarify their meaning. For example, the Greek word for "strike" can mean to hit with the palm of the hand, as if the assailant is doing this deliberately, but not in a brawl (Bruce, p.112). This Greek word is found in Matthew 26:67, Mark 14:65, John 18:22 and 19:3, all of which speak of a legal context, after the trial of Jesus.

This indicates formality and almost a ritual. This also means that followers of Jesus still have the option to defend themselves if they are attacked in society, though this is not the main thrust of the Matthew 5:38-39. Question of retaliate, resist (or defend himself) or not can be seen in the following point.

Thirdly, the command "not to resist evil" should not be over-interpreted, either. It must be seen in the larger legal context in which the slapped follower of Jesus could demand redress of grievances in a court of law. Under the inspiration of the Holy Spirit, sent by the risen Jesus, Saint Paul tells the Christians in Rome that God himself has established law enforcement and the authorities (the courts) to bring about justice for those who do right as opposed to those who do wrong (Romans 13:1-5).

Thus, Jesus does not necessarily oppose justice in such a civil court, if that is the only way to go. But 1 Corinthians 6:1-8 counsels Christians to let the church authorities judge lawsuits between brothers in Christ. In either setting, Jesus is not condemning courts for settling disputes.

Most scholars, including Joachim Jeremias, David Martyn Lloyd-Jones, and Arthur W. Pink, agree that Christ, in Matthew 5:38-48, is not setting aside the law of lex talionis as a judicial principle, but as a principle of personal vengeance (Crosby, 1990). It is wrong for the individual to take the law into his own hands. Vengeance belongs to God (Heb. 10:30) and to His delegated agents.

Although Jesus warned His audience on the mount to "resist not evil" (Matt. 5:39, KJV); yet in Romans 13:4 the governing authority in the land is said to be a "minister of God, and avenger who brings wrath upon the one who practices evil." (NASB).

Civil authorities have the right to avenge. But Jesus' audience on the mount had not such authority. The Old Testament law of lex talionis was given as part of the laws of the government of the nation of Israel; but the Sermon on the Mount is given to the Jews who have lost their sovereignty to the Romans (Crosby 1990)

Therefore, "an eye for an eye" is still a valid principle of jurisprudence. Indeed, the Lex Talionis principle—punishment commensurate with the crime—is actually reaffirmed in the Sermon on the Mount:

Do not judge, or you too will be judged. For in the same way you judge others, you will be judged, and with the measure you use, it will be measured to you. (Matthew 7:1, 2)

The rest of the New Testament also indicates that God acts in accordance with the principle of Lex Talionis. "God is just," writes Paul, "He will pay back trouble to those who trouble you." (2 Thess. 1:6).

Note that this "tit for tat" response is considered to be proof of God's justice. Hebrews 2:2, 3 makes the new dispensation an intensification of the old, where "every transgression or disobedience received a just retribution." (RSV). Colossians 3:25 and Romans 2:5-11 speak of payment in kind for one's deeds (Crosby 1990)

The parable of the unmerciful servant concludes with a retributive judgment that requires an amount of suffering equivalent to the crimes committed:

So angry was the master that he condemned the man to torture until he should pay the debt in full. And that is how my heavenly Father will deal with you, unless you each forgive your brother from your hearts. (Matt. 18:34, 35, NEB)

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To conclude, we are told to consider both "the kindness and the severity of God" (Rom. 11:22, RSV). One of the most intense pictures of God's vengeance is found in Revelation 19:11-21-and this is a portrayal of the Son! The same Testament that says "God is love" also says "God is a consuming fire. … He is the avenger." (Rom. 12:19; Heb. 10:30).

Even Jesus got angry (Mark 3:5; compare Rev. 6:16). He destroyed the fig tree and threw the robbers out of the Temple (Mark 11:12-17). Jesus also spoke of the wrath of God (John 3:36); and portrayed God as a king who relentlessly punished and destroyed the impenitent (Matt. 18:34, 35; 22:7; Luke 12:46; 19:27). Thus the divine wrath is as clearly taught in the New Testament as in the Old.

And the last point: The "no-wrath" position-robs even the biblical statements about God's love and mercy of all force, for without wrath, there is no mercy. When a parent serves a child a meal, this is not a mercy, but a duty. But if the child disobeys, and for punishment is sent to his room without supper, and then the parent relents and serves him a meal in his room, this is mercy, because only wrath is to be expected. Thus unless we take seriously the scriptural testimony about God's wrath, we can discover no need for His mercy (Crosby, 1990.)

The Qur'an

The historical context of Sura 5: 45 (Hilali and Khan, 2002) is discussed since the sura was received from on high when Muhammad has established his authority in Medina and in many regions in the Arabian Peninsula, so he lays down various laws for his community. Thus, judging personal injury is one of them.

The literary context finds Muhammad rebuking and exhorting the Jews “to listen to their own sacred Torah and to judge wisely, and they must not sell verses in it for a paltry price.”

Which verses? One includes the law of retaliation, Lex Talionis. Sura 5:45 speaks of the Jews ("them") and their Torah ("therein"). The law of retaliation is carried over to Islam:

And We ordained therein for them: Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth and wounds equal for equal. But if anyone remits the retaliation by way of charity, it shall be for him an expiation. And whosoever does not judge by that which Allah has revealed, such are the Zalimun (polytheists and wrongdoers). (Hilali and Khan, 2002)

Three considerations are involved in interpreting the Lex Talionis:

  • First, considering the Arabic rewording and transliteration the sura means literal retaliation: physical eye for physical eye, and so on.
  • Second, the injured party has the option to remit or forego retaliation and take blood-wit or an indemnity or compensation in money or in goods or livestock in an agrarian economy. This option is known as "diya."
  • Third, later jurists combine this verse with other verses and the hadith, and see a third option: forgiveness. This means that the injured party forgoes retaliation and monetary compensation. However, it is difficult to find this option actually being taken in the hadith and into classical legal opinions at all.

Other references to the Qur'an’s position on the law of retaliation or Lex Talionis can be found in the Medinan suras, after Muhammad’s Emigration from Mecca to Medina in 622 C.E.: 2:178-179; 2:194. It is in this period that Muhammad becomes harsh and war-like. Other references found in the Meccan suras before the Emigration reveal a more patient aspect: 16:126; 17:33; 22:60; 42:40.

Sura 2:178-179 is important because it speaks specifically of murder and the law of retaliation, as one of the clauses in Sura 5:45 does as well ("life for life"). In cases of murder, the victim’s family has the same three options: qisas or life for life; compensation; or forgiveness.

As noted, the only feasible alternative has always been the “blood-wit” compensation for injury and even death; although the sharia courts are increasingly putting the murder and rape cases into the “death sentence category”; whether beheading for men or stoning to death for women charged with prostitution.[1]

In so far the “blood-wit” compensation for an injury, Abu Dawud (817 - 888/889 C.E.) records traditions that line up the amount of payment for injuring limbs and other body parts, like teeth. The following amounts were altered in early Islam, for example, under the Caliphate of Umar (ruled 634-644), according to inflation (nos. 4526-4530), but they give us a rough estimate:

  • (1) All fingers are of equal value (nos. 4540-4542), so the victim gets ten camels per finger.
  • (2) Teeth carry the same value as fingers, whether the teeth are molars or incisors, so the victim gets ten camels per tooth (nos. 4543-4544, 4547).
  • (3) This is also true of toes and fingers (no. 4545).
  • (4) Completely cutting off the nose requires one hundred camels (no. 4548, which covers the next rulings).
  • (5) Cutting off the tip of the nose requires fifty camels, or the equivalent in gold or silver, or a hundred cows, or a thousand sheep.
  • (6) Cutting off half a hand requires half the payment of no.(4).
  • (7) For one foot, the payment is half of no.(4).
  • (8 For a wound in the head, a third of the payment of no.(4) must be paid.
  • (9) "For a head thrust that reaches the body, the same blood-wit must be paid" (i.e., no.(8)).

Obviously, nowadays the price in camels — with exception of nomadic tribes — has been suitably substituted by monetary (real estate, gold, jewelry, or other, easily converted-to-cash) commodities. Also, the sentences for culprits are more standardized. For simple robbery, a left hand is amputated (in a hospital environment). For repeated offenses goes the right hand. Beheading and stoning to death, for the sake of deterrence, goes on every Friday (the day of rest) in any big city as a civic spectacle open to everybody; and usually to a packed audience.

Other views

The vengeance-based forms of Lex Talionis have received much criticism. Critics maintain that merely limiting vengeance is not enough, as even limited retaliation continues a potentially endless cycle of violence. Mahatma Gandhi remarked: "An eye for an eye and a tooth for a tooth and the whole world would soon be blind and toothless."

Even though it may be hard to do in practice, certain belief systems (such as Christianity) teach individuals to forgive those who wrong them, rather than seek retribution for a wrong. Other belief systems adhere to similar concepts, such as the Daoist wu wei which encourages a wronged individual to simply accept the infraction and to take the least "resistive" action to correct it, if any action need to be taken at all.

Buddhism stresses the weight of karma: one can take retributive action, but that retributive action is not without its consequences, and living on a finite planet guarantees that the suffering incurred by a retributive action will return to the individual who was wronged (as well as the one who did the wrong-doing). Some subscribe to the Golden Rule of ethics rather than any law of retaliation.

While the Golden Rule appears merciful, the problem is that in the case where a crime has been committed, it removes the link between punishment and justice. Lex Talionis is an effort to codify in law how to respond to wrongdoings, namely that justice demands that retribution be limited by the nature of the crime. Put together with the Golden Rule, the wronged can choose forgiveness; a course not denied by the author of Lex Talionis.

Notes

  1. NOTE: If foreigners’ cases against indigenous parties are held in sharia courts, the death penalty is usually commuted for long prison terms and a very substantial “blood-wit” money paid either by the foreigner in full or, most of the time, with the help of his country-of-origin. For an illustration, there was a rock-group in 1980s' Saudi Arabia named Exit Visas, made of British expatriate doctors and nurses from Riyadh hospitals. They played The Beatles’ songs with texts wittily mirroring life in Saudi Arabia, none of which would have been construed as “lese majeste” even in any totalitarian country. However, this was the sharia court charge and based on that, half of the group was promptly sentenced to death. Prime Minister Margaret Thatcher, not wasting a day, went into an improvised tete-a-tete with the Saudi monarch and the death sentences were commuted. Some of the band members spent a long time in the Saudi prisons, nevertheless.

Legend :

  • NEB…… The New English Bible: New Testament, Oxford University Press/Cambridge University Press, London, 1961
  • NASB…… New American Standard Bible
  • KJV…… King James Version
  • RSV…… Revised Standard version
  • Danby…… Danby’s translation of scriptures
  • Baba Kamma…… Babylonian Talmud

Bibliography

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  • Crosby, Tim. 1990. “Does God get angry.” Ministry
  • Davis, James F. 2005. Lex Talionis in Early Judaism and the Exhortation of Jesus in Matthew 5:38-42. London: T & T Clark International. ISBN 0567041506
  • Hilali and Khan. 2002. The Noble Quran. Riyadh: Dar-us-Salam Publications. ISBN 996074079X
  • Jackson, Bernard S. 1973. "The Problem of Exodus XXI 22-5 (Lex Talionis)." Vetus Testamentum 23: 273-304.
  • Kaiser, Walter C. [1983] 1991. Toward Old Testament Ethics. Grand Rapids, MI: Zondervan. ISBN 0310371112
  • Kant, Immanuel. (original 1785.) Groundwork of the Metaphysics of Morals. Grundlegung zur Metaphysik der Sitten. (in German)
  • Kant, Immanuel., and Thomas Kingsmill Abbott (Translator). Groundwork for the metaphysics of morals, edited by Lara Denis. 2005. NY: Broadview Press. ISBN 1551115395
  • Lewis, C. S. [1970] 1994. "The Humanitarian Theory of Punishment." in God in the Dock: Essays on Theology and Ethics, Grand Rapids, MI: Eerdmans. ISBN 0802808689
  • Rosenbaum, M., A. M. Silbermann, (Translators). 1972. Pentateuch with Rashi’s Commentary, Vol. 2.
  • Selman, M. J. 2003. "Law," Dictionary of the Old Testament: Pentateuch, Edited by T. Desmond Alexander and David W. Baker. Downers Grove, IL: InverVarsity Press/Tyndale. ISBN: 0830817816
  • Quod Deus Sit Immutabilis. ISBN 0830817816

External links

All links retrieved July 31, 2014.

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