Retaliation, Or Lex Talionis:

By: Executive Committee of the Editorial Board. , Lewis N. Dembitz

In the early period of all systems of law the redress of wrongs takes precedence over the enforcement of contract rights, and a rough sense of justice demands the infliction of the same loss and pain on the aggressor as he has inflicted on his victim. Hence the prominence of the "lex talionis" in ancient law. The law of Israel is no exception: in its oldest form it included the "lex talionis," the law of "measure for measure" (this is only the literal translation of "middah ke-neged middah"); and the popular thought, as reflected in Talmudic sayings, imagined that God punishes nations and men with sufferings nearly identical with those which they have sinfully inflicted upon others (Sanh. 90a). The principle that "with what measure ye mete it shall be measured unto you" is solemnly asserted to underlie the divine law (see Soṭah i. 7, where it is applied to all the details of the ordeal of the suspected wife).

The Pentateuch does not contain the oldest system of Semitic laws, which is found in the jurisprudence of Babylon, mainly as laid down in the Code of Hammurabi. The instances given in this code of the rule of "measure for measure" go far beyond the "eye for an eye" of the Mosaic code, even when the latter is taken in its most literal sense. Thus, where a man strikes a pregnant free-born woman so as to cause her death through miscarriage (comp. the case put in Ex. xxi. 22-23), under that old Babylonian code (§ 210) the daughter of the assailant should be put to death. Again, when through the carelessness of the builder at house falls and the owner's son is struck and killed in the ruins, the builder's son should be put to death. This extravagant application of the "measure for measure" law is made impossible in Israel by Deut. xxiv. 16—"Fathers shall not be put to death for the children, neither shall the children be put to death, for the fathers."

According to Ex. xxi., the owner of an ox that gores a "son" or a "daughter" ( i.e. , a freeman or a freewoman), provided it has previously been shown to him that the ox was "wont to push with his horns in time past," should be put to death, though he may save himself by paying it ransom; this is a clear survival of the old idea of retaliation. A dim memory of the extravagances of the "lex talionis" in the old common law of the Semites seems to have long survived in the Jewish mind. Hence the rather humorous story told by an amora (Sanh. 109b) about the gross perversion of justice on the part of four wicked judges of Sodom shortly before its destruction by fire from heaven, which story Chamisso has rendered freely into German verse in his "Urtheil des Schemjaka," transplanting it from the city on the Dead Sea to the steppes of Muscovy. Under the head of Assault and Battery it has been shown that the meaning given by the Jewish sages (B. Ḳ. viii. 1) to the Scriptural "eye for an eye" is not necessarily a latter-day modification of the savagery of the Mosaic text; for wergild was known among all nations at a very early stage of culture, and the very prohibition of Scripture, "ye shall not take a ransom for the soul of the murderer," is a clear intimation that a payment in money was the ordinary redress for bodily injuries, and that this kind of redress was considered appropriate for all injuries not resulting in death.

It does not appear that in this matter the Sadducees adhered to the letter of the Law, for among the many disputes recorded in the Mishnah between Pharisees and Sadducees, such as that inYad. iv. 6, no allusion is found to such a broad difference in the form of redress allowed for bodily injuries, a matter of much importance and of frequent occurence. There is a vague report that the followers of Boethus, a sect going beyond the Sadducees in their divergence from the traditions, taught a literal enforcement of the rule, "an eye for an eye, a tooth for a tooth," but it does not appear that this sect was ever in power and able to give effect to its theories. On the other hand, while a ransom in money in place of the "eye" or "tcoth" of the assailant is quite compatible with the Scriptural law of assault and battery, taken as a whole, it is not so clear that the natural construction of this law would not demand the bodily infliction of the penalty, according to the written words, whenever the guilty party is unable or unwilling to pay the ransom. In one case the law requites "measure for measure"—not according to what has been actually done, but according to what was intended, or "plotted" ( see Alibi for the law of retaliation in the case of "plotting witnesses"). The rabbinical tradition narrows very much the Scriptural law as found in Deuteronomy; but this, in its turn, falls very far short of the severity and wide scope of the Babylonian law. The latter not only visits with death as a malignant slanderer one who wilfully, though unsuccessfully, accuses another of sorcery, or of any other capital crime, but even one who claims goods as having been stolen from him without being able to produce witnesses to his ownership (Code of Hammurabi, §§ 1-3, 11).