I recently came across this interesting, five-year-old interview with law professor William Ian Miller on “talionic” law in the Middle Ages, which specified literal “eye for an eye” justice. Talionic law developed in societies that lacked stable state institutions, like Iceland and early England. As such, it was embedded in strong extended-family institutions that used tit-for-tat strategies to keep order.
The traditional understanding of “eye for an eye” justice is that it is retributive, that is, that its motivating principle is punishment of the wrongdoer, pure and simple. Miller, however, makes a persuasive case that such systems are actually restitutory, that is, aimed at making the victim whole. In that sense they are much more humane than much contemporary criminal law, which ignores the victim and unproductively locks away criminals. An excerpt that makes the argument in a nutshell:
Your book argues that we often use the term “eye for an eye” to describe a harsh kind of justice from the past. But talionic societies could be said to put a higher value on human life and the human body than we do. They were much more committed to finding the exact worth of body parts and lives. So, let’s say you poke out my eye…
Then, instantly, my eye becomes yours. To get the value exactly right, we say an eye is worth an eye. You have a right to my eye. Now you can say to me, “I’m going to take your eye.” Then I’m going to say, “Hey, what would you be willing to accept instead?” It becomes an initial bargaining position.
If you want victims to be more highly valued and you want real, adequate compensation, this is how to do it. Now if I offer you what some lousy insurance company says your eye is worth — say, $100,000 — you’ll say, “No way! I would never have let you take my eye for that.” Instead, you can be sure I’ll put the same value on not losing my eye that you would have put on yours, and I will pay you that amount to keep my own eye. How about $5 million? Let’s start there. And we’ll bargain it out.
The book mentioned is this.
So how about it – should we return to the lex talionis?