Lex talionis

The phrase "an eye for an eye, a tooth for a tooth", Hebrew עין תחת עין,שן תחת שן: a quotation from Exodus 21:23–27, expresses a principle of retributive justice also known as lex talionis (Latin for "law of retaliation"). 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 (e.g., Ex 21:23–25, Lv 24:18–20, Dt 19:21).

In reference to torts, the Old Testament prescription "an eye for an eye, etc." has often been interpreted, notably in Judaism, to mean equivalent monetary compensation, even to the exclusion of mirror punishment.

Definition and methods

The term lex talionis does not always and only refer to literal eye-for-an-eye codes of justice (see rather mirror punishment) but applies to the broader class of legal systems that specify formulaic penalties for specific crimes, which are thought to be fitting in their severity. Some propose that this was at least in part intended to prevent excessive punishment at the hands of either an avenging private party or the state. The most common expression of lex talionis is "an eye for an eye", but other interpretations have been given as well. Legal codes following the principle of lex talionis have one thing in common: prescribed 'fitting' counter punishment for an offense. In the famous legal code written by Hammurabi, the principle of exact reciprocity is very clearly used. For example, if a person caused the death of another person's child, that person's child would be put to death.

The simplest example is the "eye for an eye" principle. In that case, the rule was that punishment must be exactly equal to the crime. Conversely, the twelve tables of Rome merely prescribed particular penalties for particular crimes. The Anglo-Saxon legal code substituted payment of wergild for direct retribution: a particular person's life had a fixed value, derived from his social position; any homicide was compensated by paying the appropriate wergild, regardless of intent. ( There was no distinction between accidental manslaughter and deliberate murder. Under the British Common Law, successful plaintiffs were entitled to repayment equal to their loss (in monetary terms). In the modern tort law system, this has been extended to translate non-economic losses into money as well.

A curious result of the tort system is that after O.J. Simpson was acquitted of the murder of his ex-wife and another person (an acquittal widely attributed to defense counsel Johnnie Cochran's mastery of the fine points of jury selection), a civil trial found him responsible for the wrongful death of Nicole Brown Simpson and Ron Goldman. Since this was a civil trial rather than a criminal trial, this did not count as double jeopardy under the Bill of Rights. Indeed, Simpson had only once been in jeopardy of "life and limb": in a civil case, only his money was in jeopardy.

Antecedents

Various ideas regarding the origins of lex talionis exist, but a common one is that it developed as early civilizations grew and a less well-established system for retribution of wrongs, feuds and vendettas, threatened the social fabric. Despite having been replaced with newer modes of legal theory, lex talionis systems served a critical purpose in the development of social systems — the establishment of a body whose purpose was to enact the retaliation and ensure that this was the only punishment. This body was the state in one of its earliest forms.

The principle is found in Babylonian Law, see Code of Hammurabi. It is surmised that in societies not bound by the rule of law, if a person was hurt, then the injured person (or their relative) would take vengeful retribution on the person who caused the injury. The retribution might be much worse than the crime, perhaps even death. Babylonian law put a limit on such actions, restricting the retribution to be no worse than the crime, as long as victim and offender occupied the same status in society, while punishments were less proportional with disputes between social strata: like blasphemy or laesa maiestatis (against a god, viz., monarch, even today in certain societies), crimes against one's social better were systematically punished as worse.

Biblical traditions

Lex talionis in Judaism

The Torah's first mention of the phrase "an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot" appears in Ex 21:22–27]. The Talmud (in Bava Kamma, 84a), based upon a critical interpretation of the original Hebrew text, explains that this biblical concept entails monetary compensation in tort cases. One element of this interpretation notes that "an eye for an eye" understood literally would be inapplicable to blind or eyeless offenders. Since the Torah requires that penalties be universally applicable, the phrase cannot be interpreted literally. The same interpretation applies to this phrase as it appears in Leviticus Lv 24:18–20. Personal retribution is explicitly forbidden by the Torah (Lv 19:18 Leviticus 19:18]), such reciprocal justice being strictly reserved for the social magistrate (usually in the form of regional courts).

The Oral Law explains, based upon the biblical verses, that the Bible mandates a sophisticated five-part monetary form of compensation, consisting of payment for "Damages, Pain, Medical Expenses, Incapacitation, and Mental Anguish" — which underlies many modern legal codes. Some rabbinic literature explains, moreover, that the expression, "An eye for an eye, etc." suggests that the perpetrator deserves to lose his own eye, but that biblical law treats him leniently. − Paraphrased from the Union of Orthodox Congregations

However, the Torah also discusses a form of direct reciprocal justice, where the phrase "An eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot" makes another appearance (Deuteronomy 19:16–21). Here, the Torah discusses false witnesses who conspire to testify against another person. The Torah requires the court to "do to him as he had conspired to do to his brother" (Dt 19:19). Assuming the fulfillment of certain technical criteria (such the sentencing of the accused whose punishment was not yet executed), wherever it is possible to punish the conspirators with the exact same punishment through which they had planned to harm their fellow, the court carries out this direct reciprocal justice (including when the punishment constitutes the death penalty). Otherwise, the offenders receive lashes (Makot 1:1; ibid., Bab. Talmud 2a based on critical exegesis of Dt 25:1–3).

Since there is no form of punishment in the Torah that calls for the maiming of an offender (excepting in the case of a slave that refuses to go free at the Sabbatical year, where the court requires that his earlobe be pierced Ex 21:6), there is no case where a conspiratorial false witness could possibly be punished by the court injuring to his eye, tooth, hand, or foot. (There is one case where the Torah states "…and you shall cut off her hand…" Dt 25:11–12. The sages of the Talmud understood the literal meaning of this verse as referring to a case where the woman is attacking a man in potentially lethal manner. This verse teaches that, although one must intervene to save the victim, one may not kill a lethal attacker if it is possible to neutralize that attacker through non-lethal injury {Sifrei; Maimonides' Yad, Nezikin, Hil. Rotze'ach u'Sh'mirat Nefesh 1:7}. Regardless, there is no verse that even appears to mandate injury to the eye, tooth, or foot.) Thus, it is impossible to read "an eye for an eye, a tooth for a tooth" literally in the context of a conspiratorial witness.

Numbers 35:9–30 discusses the only form of remotely reciprocal justice not carried out directly by the court, where, under very limited circumstances, someone found guilty of negligent manslaughter may be killed by a relative of the deceased who takes on the role of "redeemer of blood". In such cases, the court requires the guilty party to flee to a designated city of refuge. While the guilty party is there, the "redeemer of blood" may not kill him. If, however, the guilty party illegally forgoes his exile, the "redeemer of blood", as an accessory of the court, may kill the guilty party. Nevertheless, the provision of the "redeemer of blood" does not serve as true reciprocal justice, because the redeemer only acts to penalize a negligent killer who forgoes his exile. Furthermore, intentional killing does not parallel negligent killing and thus cannot serve directly as a reciprocal punishment for manslaughter, but as a penalty for escaping punishment (Makot 7a–13a). (According to traditional Jewish Law, application of these laws requires the presence and maintenance of the biblically designated cities of refuge, as well as a conviction in an eligible court of 23 judges as delineated by the Torah and Talmud. The latter condition is also applicable for any capital punishment. These circumstances have not existed for approximately 2,000 years.)

Objective of reciprocal justice in Judaism

The Talmud discusses the concept of justice as measure-for-measure retribution (middah k'neged middah) in the context of divinely implemented justice. Regarding reciprocal justice by court, however, the Torah states that punishments serve to remove dangerous elements from society ("…and you shall eliminate the evil from your midst" [Deut. 19:19]) and to deter potential criminals from violating the law ("And the rest shall hear and be daunted, and they shall no longer commit anything like this wicked deed in your midst", Dt 19:20). Additionally, reciprocal justice in tort cases serves to compensate the victim (see above).

The ideal of vengeance for the sake of assuaging the distress of the victim plays no role in the Torah's conception of court justice, as victims are cautioned against even hating or bearing a grudge against those who have harmed them. The Torah makes no distinction between whether the potential object of hatred or a grudge has been brought to justice, and all people are taught to love their fellow (Lv 19:17–18).

Lex talionis in Christianity

Christian interpretation of the biblical passage has been heavily influenced by the quotation from Leviticus (19:18 above) in Jesus of Nazareth's Sermon on the Mount. In the Expounding of the Law (part of the Sermon on the Mount), Jesus urges his followers to turn the other cheek when confronted by violence:

You have heard that it was said, "An eye for an eye and a tooth for a tooth". But I say to you, do not resist an evildoer. If anyone strikes you on the right cheek, turn to him the other also. (Matthew 5:38–39, NRSV)

The passage continues with the importance of showing forgiveness to enemies and those who harm you. This saying of Jesus is frequently interpreted as criticism of the Old Testament teaching, and often taken as implying that "an eye for an eye" encourages excessive vengeance rather than an attempting to limit it.

It was one of the points of 'fulfillment or destruction' of the Hebrew law which the Church father St. Augustine already discussed in his Contra Faustum, Book XIX.

Most Christian scholars and commentators have agreed that such an interpretation is a misunderstanding of this section of Matthew. The "Expounding of the Law" includes a series of six sayings in similar format, known as the " antitheses". In each of them Jesus quotes the provisions of the Jewish Law without criticism — indeed, the passage is prefaced by a ringing endorsement of the Law as whole. However he then calls on his followers to go further than the Law demands, in order to "Be perfect". It seems clear Jesus was not criticising the law, but calling on his followers not only to refrain from the abuses the Law condemns, but to go to the opposite extreme by exercising forgiveness and love — even when one has a just claim to vengeance.

Alternatives

Some alternative penalty systems exist which primarily concern the impact of the punishment on the sanctioned offender and/or on society, while demanding non-parallel penalties.

For example the "correctional" prison system (first instituted in the USA in the early 20th century) is based on the idea that the purpose of law enforcement is to correct the deviant nature of criminals by compelling them to reflect and regret their crimes during a lengthy incarceration; another alternative, the reformatory, was invented to "reform", i.e. reeducate, young offenders etcetera.

Criticism

The neutrality of this article or section is disputed. Please see the discussion on the talk page.

The vengeance-based non-biblical forms of Lex Talionis have been critizited; its critics maintain that merely limiting vengeance is not enough as even limited retaliation continues a potentially endless cycle of violence.^{[citation needed]}

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 Taoist 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.

Mahatma Gandhi remarked on the lex talionis: "An eye for an eye and a tooth for a tooth and the whole world would soon be blind and toothless."

It can also be seen as an extension of the informal logical fallacy, two wrongs make a right.

References in popular culture

• An Eye for an Eye is a novella in the Noughts and Crosses series by Malorie Blackman, written for World Book Day 2003.
• The Creedence Clearwater Revival song "Bad Moon Rising", after recounting the narrator's parade of horribles, says, "one eye is taken for an eye".
• Harold Bishop, a devoutly Christian character in the Australian soap opera Neighbours, used the expression "an eye for an eye" when confronting tyrannical manager Paul Robinson.
• For more motion pictures and TV productions, see IMDb references
• The Bruce Springsteen song "Empty Sky" has lyrics "an eye for an eye."
• The self-titled Soulfly album features a song called "eye for an eye." (featuring Fred Durst of Limp Bizkit).
• The Bright Eyes song named "Let's Not Shit Ourselves (To Love and be Loved)" contains the lyrics: "we'll take eye for an eye/until no one can see/and we will stumble blindly forward/repeating history"
• Villanova University's athletic fight song includes the line, "It's an eye for an eye and a tooth for a tooth."
• The Temptations 1969 song "Ball of Confusion" has the line, "an eye for an eye, a tooth for a tooth vote for me and I'll set you free."
• The bands Soulfly and UNKLE have (different) songs titled "Eye for an Eye".

"Eye for an Eye" is a hit movie starring Sally Field who kills the man (played by Keifer Sutherland) who rapes and murders her daughter.

See also

• Revenge
• Forgiveness
• Turn the other cheek
• Code of Hammurabi
• Retributive justice
• Proportionality (law)
• Quid pro quo

Sources and external links

• Union of Orthodox Jewish Congregations explanation of the Torah and Lex Talonis
• Calvin's Commentary on Exodus 21:22–26
• Calvin's Commentary on Matthew 5:38
• Aquinas' collation of commentaries on Matthew 5:38–42
• Tolstoy's Legacy for Mankind: A Manifesto for Nonviolence, Part 1 & Part 2
• The fine art of revenge: Salon interview with Professor William Ian Miller, author of "Eye for an Eye", about the Lex talionis.

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