Lex talionis

This article is about the principle of retributive justice. For other uses, see Eye for an eye (disambiguation).

An eye for an eye is the principle that a person who has injured another person is penalized to a similar degree, or according to other interpretations the victim receives the value of the injury in compensation. According to Jewish interpretations the victim in criminal law gets financial compensation based on the law of human equality eschewing mutilation and lex talionis.[1]

The English word talion means a retaliation authorized by law, in which the punishment corresponds in kind and degree to the injury, from the Latin talio.[2] The phrase "an eye for an eye" is sometimes trivially referred to using the Latin term lex talionis, the law of retaliation.

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 formulate 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.[3] 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 offence. 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, the killer would be put to death (Hammurabi's code, §230).

Under the right conditions, such as the ability for all actors to participate in an iterative fashion, the "eye for an eye" punishment system has a mathematical basis in the tit for tat game theory strategy.

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. 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. The meaning of the principle Eye for an Eye is that a person who has been injured by another person returns the offending action to the originator in compensation, or that an authority does so on behalf of the injured person. The exact Latin (lex talionis) to English translation of this phrase is actually "The law of retaliation." The root principle of this law is to provide equitable retribution.

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) (1780 BCE).[4] 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 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. As with blasphemy or lèse-majesté (crimes against a god or a monarch), crimes against one's social betters were punished more severely.

Roman law moved toward monetary compensation as a substitute for vengeance. In cases of assault, fixed penalties were set for various injuries, although talio was still permitted if one person broke another's limb.[5]

Abrahamic traditions

In the Hammurabi Code and Hebrew Law, the “eye for eye” was to restrict compensation to the value of the loss. Thus, it might be better read 'only one eye for one eye'.[2] The biblical phrase, "an eye for an eye" in Exodus and Leviticus (עין תחת עין, ayin tachat ayin) literally means 'an eye under an eye' while a slightly different phrase (עַיִן בְּעַיִן שֵׁן בְּשֵׁן, literally "eye for an eye; tooth for a tooth") is used another passage (in Deuteronomy) of the Jewish Bible, specifically, in the first of its three subdivisions, the Torah.[6][7][8] For example, a passage in Leviticus states, "And a man who inflicts an injury upon his fellow man just as he did, so shall be done to him [namely,] fracture for fracture, eye for eye, tooth for tooth. Just as he inflicted an injury upon a person, so shall it be inflicted upon him.[6]

Judaism

Isaac Kalimi explains that the “lex talionis was humanized by the Rabbis who interpreted "an eye for an eye" to mean reasonable pecuniary compensation. As in the case of the Babylonian 'lex talionis', ethical Judaism and humane Jewish jurisprudence replaces the peshat (literal meaning) of the written Torah.[9] Pasachoff and Littman point to the reinterpretation of the lex talionis as an example of the ability of Pharisaic Judaism to "adapt to changing social and intellectual ideas."[10]

Talmud

The Talmud (in Bava Kamma, 83b-84a), interprets the verses referring to "an eye for an eye" and similar expressions as mandating monetary compensation in tort cases and argues against the interpretations by Sadducees that the Bible verses refer to physical retaliation in kind, using the argument that such an interpretation would be inapplicable to blind or eyeless offenders. Since the Torah requires that penalties be universally applicable, the phrase cannot be interpreted in this manner.

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[11]

However, the Torah also discusses a form of direct reciprocal justice, where the phrase ayin tachat ayin makes another appearance (

Since there is no form of punishment in the Torah that calls for the maiming of an offender, 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…" 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.)

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," Deuteronomy 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 human beings.(Lv 19:17–18).

Social hierarchy and reciprocal justice

In Exodus 21, as in the

However, in Leviticus, the reciprocal justice is meant to apply across social boundaries. The "eye for eye" principle is directly followed by the proclamation "You are to have one law for the alien and the citizen." (Lev 24:19-22) This shows a much more meaningful principle for social justice, in that the marginalized in society were given the same rights under the social structure. In this context, the reciprocal justice in an ideal functioning setting, according to Michael Coogan, "to prevent people from taking the law into their own hands and exacting disproportionate vengeance for offenses committed against them."[13]

Lex talionis in Christianity

Christian interpretation of the Biblical passage has been heavily influenced by the Church father St. Augustine. He already discussed in his Contra Faustum, Book XIX, the points of 'fulfilment or destruction' of the Jewish law.[14] George Robinson characterizes the passage of Exodus ("an eye for an eye") as one of the "most controversial in the Bible". According to Robinson, some have pointed to this passage as evidence of the vengeful nature of justice in the Hebrew Bible.[15] Similarly, Abraham Bloch speculates that the "lex talionis has been singled out as a classical example of biblical harshness."[16] Stephen Wylen asserts that the lex talionis is "proof of the unique value of each individual" and that it teaches "equality of all human beings for law."[17] In the Sermon on the Mount), Jesus of Nazareth urges his followers to turn the other cheek rather than to seek legal steps for any compensation that corresponds in kind and degree to the injury:[1]

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. (NRSV)

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 attempt to limit it.

The Calvinistic doctrine of limited atonement alludes to the doctrine of lex talionis. The position of Arminianism (the opposite line to Calvinism) isthat Jesus suffered on the cross as a token atonement for all of humankind, whereas the Calvinistic position (under the doctrine of limited atonement) is that Jesus suffered the punishment due to the sins of all those who have been elected for Heaven in a lex talionis fashion, i.e. like-for-like.

Islam

Main article: Qisas

The Qur'an mentions the "eye for an eye" concept as being ordained for the Children of Israel.[18] The principle of Lex talionis in Islam is Qasas (قصاص) as mentioned in (Qur'an 2:178) "O you who have believed, prescribed for you is legal retribution (Qasas) for those murdered - the free for the free, the slave for the slave, and the female for the female. But whoever overlooks from his brother anything, then there should be a suitable follow-up and payment to him with good conduct. This is an alleviation from your Lord and a mercy. But whoever transgresses after that will have a painful punishment.". Some Shia Islam Muslim nations (Iran), still apply the rule, in accordance with the Mosaic Law. In some countries that use Shi'ite Islamic law (Sharia), the "eye for an eye" rule is applied quite literally.[19][20]

“In the Torah We prescribed for them a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, an equal wound for a wound: if anyone forgoes this out of charity, it will serve as atonement for his bad deeds. Those who do not judge according to what God has revealed are doing grave wrong.” (Qurʾān 5:45)

Notable dissenters

  • Martin Luther King, Jr. later used this phrase in the context of racial violence: "The old law of an eye for an eye leaves everyone blind."[21]
  • "An eye for an eye only ends up making the whole world blind." - Gandhi
  • In Fiddler on the Roof, the protagonist, Tevvye, replies to the phrase with "And then the whole world would be blind and toothless."

See also

References

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
  • Part 2
  • The fine art of revenge: Salon interview with Professor William Ian Miller, author of "Eye for an Eye", about the Lex talionis.
  • Shubow, Justin. Blind Justice: a review of William Ian Miller's Eye for an Eye. First Things, December 2006.

de:Talion

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