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.
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 a felony. 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.
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 "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.
If 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 an others' limb.
In religion
The principle was first referenced in the Code of Hammurabi, which predates the Hebrew bible. In the 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'. The idiomatic biblical phrase "an eye for an eye" in Exodus and Leviticus (עין תחת עין,
ayin tachat ayin) literally means 'an eye under/(in place of) an eye'
while a slightly different phrase (עַיִן בְּעַיִן שֵׁן בְּשֵׁן,
literally "eye for an eye; tooth for a tooth") is used in another
passage (Deuteronomy) in the context of possible reciprocal court
sentences for failed false witnesses. The passage in Leviticus
states, "And a man who injures his countryman – as he has done, so it
shall be done to him [namely,] fracture under/for fracture, eye
under/for eye, tooth under/for tooth. Just as another person has
received injury from him, so it will be given to him." (Lev. 24:19–21). For an example of תחת being used in its regular sense of under, see Lev. 22:27 "A bull, sheep or goat, when it is born shall remain under its mother, and from the eighth day..."
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.
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."
Talmud
The Talmud 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.
However, the Torah also discusses a form of direct reciprocal justice, where the phrase ayin tachat ayin makes another appearance.
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".
Assuming the fulfillment of certain technical criteria (such as the
sentencing of the accused whose punishment was not yet executed),
wherever it is possible to punish the conspirators with exactly the 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.
Since there is no form of punishment in the Torah that calls for
the maiming of an offender (punitary amputation) 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…"
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. 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.
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")
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 evil deed in your midst"). 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 Israelites.
Social hierarchy and reciprocal justice
In Exodus 21, as in the Code of Hammurabi,
the concept of reciprocal justice seemingly applies to social equals;
the statement of reciprocal justice "life for life, eye for eye, tooth
for tooth, hand for hand, foot for foot, burn for burn, wound for wound,
stripe for stripe"
is followed by an example of a different law: if a slave-owner blinds
the eye or knocks out the tooth of a slave, the slave is freed but the
owner pays no other consequence. On the other hand, the slave would
probably be put to death for the injury of the eye of the slave-owner.
However the reciprocal justice applies 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."
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."
Christianity
When talking about an "eye for an eye", Jesus taught to turn the other cheek during the Sermon on the Mount.
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 the one who is evil. But if anyone slaps you on the right cheek, turn to him the other also.
— Jesus Christ, English Standard Version (Matthew 5:38-39)
Some interpret this as an admonition not to seek legal steps for any
compensation that corresponds in kind and degree to the injury.
Others interpret it as Jesus simply teaching his followers not to take
personal vengeance, rather than commenting on any legal practice.
Christian interpretation of the Biblical passage has been heavily influenced by the Church father Augustine of Hippo. He already discussed in his Contra Faustum, Book XIX, the points of 'fulfilment or destruction' of the Jewish law.
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. Similarly, Abraham Bloch speculates that the "lex talionis has been singled out as a classical example of biblical harshness." Harry S. Lewis points to Lamech, Gideon and Samson
as Biblical heroes who were renowned for "their prowess in executing
blood revenge upon their public and private enemies." Lewis asserts that
this "right of 'wild' justice was gradually limited."
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."
Islam
The Qur'an mentions the "eye for an eye" concept as being ordained for the Children of Israel. The principle of Lex talionis in Islam is Qiṣāṣ (Arabic: قصاص) as mentioned in Qur'an, 2:178: "O you who have believed, prescribed for you is legal retribution (Qisas)
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."
Muslim countries that use Islamic Sharia law, such as Iran or Saudi Arabia, apply the "eye for an eye" rule literally.
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.
— Al-Ma'ida Qurʾān, 5:45
Notable criticism
- 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."
