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The 'lex talionis' before and after criminal law.


The lex talionis established a right to revenge. It responds to a common feeling: one who wrongfully inflicted harm should not benefit and should compensate the person he harmed. The actual feeling is something like this: Why should he, who deprived me of one eye, continue to enjoy two eyes? More generally, why should he, who harmed me, be unharmed? There may be, as well, a kind of restitution through sympathetic magic, as though, by depriving him of the eye he owes me, mine is somehow restored. This is not possible. However, equality can be restored. Originally we were equal, each possessing two eyes; we became unequal when he deprived me of one. If his eye is taken, we are equal once more, each having one eye. By restoring equality, the original attacker is deprived of any relative gain. This has a deterrent effect too, which, though not part of revenge, may have played a role in the social approval thereof.

Among primitives the lex talionis was practiced in a literal manner by the interested parties. It still is in vendettas and blood feuds. These occur whenever injuries are suffered which the law cannot, or is not trusted to, settle in an acceptable manner.[1] However, as social authorities became more involved, the lex talionis was refined, to become, in the main, a right to compensation.


The lex talionis also limited the retaliatory injury that rightfully could be done by the injured party to the original offender, or the compensation that could be exacted from him for the harm, or loss, suffered. (In this respect the lex talionis was more rational than current American liability practice appears to be.) Apart from equity, the social need for this limitation is quite obvious. Without it, a wrongful injury might give rise to wrongful retaliatory injuries in excess of the original loss or harm, which, in turn, would be retaliated for, and so on ad infinitum. Custom tended to enforce the limitations imposed. The injured person, or surviving relatives, were entitled to retaliation or compensation. Absent the claimants, nothing was due. In short, the lex talionis treated as torts what today are considered crimes. Indeed, compensation came to include the elements of modern tort law.

Since the lex talionis was to make the injured party whole, by restoring, as much as possible, the status quo ante, including the degree of equality or inequality that originally prevailed, a number of questions arise: What if either party was one-eyed to begin with? Or was much younger or more beautiful than the other? Or pursued an occupation totally impeded by the harm inflicted? What about different social statuses and incomes? Pain and suffering? Lost earnings? Indirect adverse physical and psychological effects to which the harm is claimed to have contributed? Obviously problems arise in the application of the lex talionis. Therefore many rabbinical commentaries have interpreted the original biblical injunction punctiliously. These commentaries are irrelevant to criminal law, whatever their relevance to tort law. I shall not add to them. Rather, I turn to the relation of the lex talionis to criminal law.


The lex talionis is not relevant to criminal law except by suggesting that the punishment of criminals must be perceived as sufficiently punitive so that crime victims will resist the temptation to resort to private revenge. The punishment inflicted by the criminal law is likely to be the only satisfaction the victim receives since attempts to obtain compensation via tort law fail most of the time because the offender cannot pay. Yet it is not the main task of criminal punishment to gratify the desire for revenge.

In moral and philosophical discourse about the criminal law, the lex talionis is sometimes used to contend that the pain or harm inflicted by punishment should not exceed the pain or harm inflicted by the offender on his victim.[2] As noted, such a limitation made sense when what today we call crimes were, in effect, conceived as torts. But the lex talionis makes no sense whatever when used to limit the punishments of the criminal law.

Crimes are offenses against the social and legal order, as distinct from torts, which are wrongful harms suffered by individual victims. The purpose of criminal punishment is neither retaliation nor compensation. Indeed, the notions of revenge, retaliation, restitution, or compensation are irrelevant to the criminal law sensu strictiori. Unlike torts, crimes are prosecuted in the name of "the people." The victim is but a witness for the prosecution. The retributive punishments of the law are meant to vindicate the social order and to deter from violating it. The harm done to any specific victim may influence legislators and courts in their judgment of the gravity of the offense against the public order, which judgment, together with the culpability of the offender, and the need to deter others, determines the severity of the punishment needed. However, that punishment is in no way limited by the harm suffered by the individual victim. The punishment depends entirely on the harm, moral and material, suffered by society. There is nothing morally wrong, then, with imposing four years of imprisonment on a kidnapper who imprisoned his victim for just three days; nor with punishing an offender who had no specific victim: a person who evaded military service or taxes, or illegally imported drugs, or seduced a consenting minor, or unsuccessfully attempted to commit any crime.

Finally, even if the lex talionis were to influence criminal punishments, it would raise the question: Why limit the punishment to the harm suffered by the victim? Why not double as much? After all, the victim was innocent, but the offender was not. The offender volunteered to do harm; the victim did not volunteer to have harm done. Not least, the offender volunteered for the risk of punishment; the victim did not. Why use tort reasoning for crimes? Since nothing compensatory is involved, retaliation would be unlimited. On the other hand, why should the punishment not impose only half the suffering the offender imposed? Society may be charitable.

The harm done by the offender to the victim does not determine the harm done to society in breaking its laws, or the punishment required by that harm, except that that harm is unlikely to be less than the harm done to the individual victim. Therefore, the punishment, however different in kind, rarely should be less than that which the lex talionis exacted although it may be more, since the social harm may well exceed the harm suffered by the individual. Thus the lex talionis suggests a minimum, but no maximum, criminal punishment, although before the criminal law was invented and as long as it was conceived mainly as socialized revenge or compensation, the lex talionis suggested the maximum harm or compensation the victim could exact.


[1] The Italian movie The Seduction of Mimi, directed by Lina Wertmuller, may serve as an illustration: although not attracted to her, the protagonist goes to great lengths to seduce the wife of a man who had seduced his wife, as an act of literal retaliation.

[2] See Goldman, Beyond the Deterrence Theory: Comments on van den Haag's "Punishment as a Device for Controlling the Crime Rate," 33 RUTGERS L. REV. 721-29 (1981); Reiman, Justice, Civilization and the Death Penalty: Answering van den Haag, 14 PHIL. & PUB. AFF. 115-48 (1985); A. CAMUS, IN RESISTANCE, REBELLION AND DEATH 131, 151-52 (trans. X. O'Brien 1960).
COPYRIGHT 1992 Institute for Criminal Justice Ethics
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Author:van den Haag, Ernest
Publication:Criminal Justice Ethics
Date:Jan 1, 1992
Next Article:The ethics of deceptive interrogation.

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