Eye for an Eye: Retribution or Restitution?

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?

15 thoughts on “Eye for an Eye: Retribution or Restitution?

  1. I used to have a fair amount of sympathy for retributive forms of justice but it seems I’ve moved away from it over the years. I think things start to get stick precisely around “eye for an eye” (physical harm) issues. There is certainly a sense in where “eye for an eye” is restitutive.

    If you steal $5,000 from me then I have a right to steal $5,000 from you. But the reason justice calls for this, in my opinion, is because it makes you whole. But does a call for “eye for an eye” in the literal sense really make you whole? If someone comes along and gouges out my eye, will taking his eye for myself represent some kind of compensatory justice? I think that’s a little harder to see (no pun intended).

    I can’t (at least as of today) use his eye to replace my own and thus make me whole in that sense. I suppose if it were possible to completely transplant an eye (at full function) then maybe it would be a moot point. But I suppose this all calls for a narrowing of the definition of justice. Is justice about restoring property rights – about compensation? Is it a tautological framework for inflicting injuries on the criminal which they have inflicted on others? Or is it some hazy combination of the two? Does inflicting harm upon the aggressor actually represent some kind of compensatory action?

    I still tend to lean away from conceptions of retributive justice – although I think it’s important to work out. My guess is that libertarians in particular are fairly divided on this. And I think it has many applications, in general, to property-rights theory – particularly how we address things like trespass, reciprocal force, imprisonment, etc.

    1. Actually, the author deals with precisely that point in the interview (and, I thought, in the excerpt above). So an “eye for an eye” doesn’t necessarily mean that I will gouge out your eye if you gouge out mine. It simply means that I have the right to gouge out your eye if I want. But of course, I will probably prefer for you to pay me monetary compensation instead. So we bargain. What will you pay me so that I won’t gouge out your eye? It turns out that you will pay me exactly as much as you value your own eye – which is the best guess we have as to how much I valued my own eye! So what happens in such societies is that efficient monetary compensations emerge through a bargaining process. Eyes actually don’t end up getting gouged out as punishments.

      1. I apologize as I probably should have worded my response more concisely. My contention, I suppose, is if you in fact have a right to HIS eye, or monetary compensation thereof; or if you simply have a right to YOUR eye, or monetary compensation thereof – regardless of any actual eye-gouging or compensation that occurs. And, yes, I would include some kind of fair replacement (subjectively speaking) for the item as falling under such compensation. In any case, I suppose I’m questioning.

        In other words, it’s not clear to me that if someone steals YOUR car that you all of a sudden have an inherent right to THEIR car. I think, at least as generally follows from the basic NAP, you actually simply still have a right to YOUR car. If the thief cannot make you whole by returning your car + additional damages, _then_ he is olbiged to compensate by other means; which I suppose could include giving you his car as part of restoration.

        I think, in a lot of ways, retributive and restitutive justice over-lap. So it’s hard to sort out intention and purpose in punishment/compensation. Making someone whole is often costly. So in that sense, compensatory actions can double as punishment in that sense. But I’m still not convinced that should be the primary motive of justice.

  2. In addition to Cross’s point, I wonder how it is that you get a bargain out of this. Suppose I poke out your eye, and (on this view) you now have a right to mine. What kind of bargaining position do I have? You can probably clean me out, indenture, me, and so on before I’ll agree to let you “have” my eye instead. It seems to me like it creates substantial hold out problems of a certain sort. No doubt these are powerful incentives for me not to poke your eye out in the first place! But as a way of establishing some kind of realistic “valuation” of such losses? I doubt it. It seems to me the insurance model is much likelier to get things right: if you pay the premiums, how much insurance are you willing to buy against the risk of loss of your eye? If it turns out the measly $100 grand is the answer to that question, that’s much more likely to be the right answer (to the extent there is a right answer.

    1. In the insurance model you run the risk of undervaluing the bodily appendages of the poor. Ideally, there would be a common law consensus about roughly what an eye is worth based on a number of factors (talmudic law is very instructive to this end, categorizing the various types of damages involved, including medical bills, lost wages, humiliation, physical pain, and market value- i.e. the plaintiff’s decrease in value as hypothetical chattel or, today, in future wages). This figure would vary by person, but the major components of it- the price of humiliation, suffering, and medical care- would be fairly consistent.

    2. I don’t think these are hold-out problems of the kind that would diminish efficiency (lead to a Pareto inferior outcome). It’s just a typical bargaining scenario, like examples usually used to elucidate the Coase Theorem. I could take your eye if you wanted. What will you give me that will make me decide not to do it? The answer will have to be some point along the contract curve: between the point that makes me indifferent between taking your eye and taking payment instead, and the point that makes you indifferent to having your eye taken (not paying) and paying instead. We don’t know in advance where exactly that point will be. But I don’t think a criminal eye-gouger will end up as a lifelong indentured servant – after all, after having his eye taken the original victim will have nothing and the criminal can go about his life (on a less happy level to be sure). So he has bargaining power too.

  3. Can I add my two cents to this worthy discussion? I’m in agreement with CC that there is a distinction between YOUR eye and MY eye, that precludes YOUR eye from acting as a substitute for MY eye (imagine if you are a professional Tennis Line Judge and I am a partly-blind telemarketer). But let me add another wrinkle: if we can all agree that destruction is to be avoided when possible, and not encouraged by law in general, this policy presents a problem in two scenarios. First, in the case where the defendant is too poor to put together an adequate compensation package, the plaintiff my have nothing to bargain against, and may just take the eye. Second, a vengeful plaintiff may choose to take his repayment in the form of taking the eye (or something comparable, such as destroying the person’s factory) out of pure spite. As for the first case, this does not differ from today’s state of affairs, wherein one person who damages another may not have the resources to make him whole. But the second scenario is one of pure destruction enabled by the law- instead of one person’s assets being destroyed, two people find their assets destroyed, and society at large is worse off.

    1. I think you’ve elucidated my point (in your second conjecture) far better than I did. This is PRECISELY what I’m thinking about. If someone, by chance, should steal my car and demolish it in a crusher, would/could justice be served by taking the thief’s car and doing the same to it? I’m leaning towards no – this doesn’t constitute and true sense of restitution. In fact, it seems like needless destruction.

      Here’s what’s interesting though (another wrinkle?):

      Let’s take the above scenario to arbitration. It is decided that the theif must find a suitable replacement for my car (+ damages) or compensate me monetarily. It just so happens that he has few liquid assets, but he has a car that is worth far more that my previous one. He offers it to me as compensation. I accept. The next day I proceed to take the car and completely demolish it (in the same manner that the first one was demolished). Is this OK?

      Strangely enough, I’m leaning towards thinking it’s fine – even though the ultimate end is _roughly_ the same thing that would have happened given an “eye for an eye” framework for justice.

      1. I think you’ve hit on the reason why I think gouging the eye or crushing the car actually would constitute restitution, provided that’s what the victim actually wants. Suppose a victim of criminal eye-gouging decides that he wants to gouge the eye of the offender rather than accept monetary compensation. What that means is that the victim sees himself as being better off being able to gouge the eye than accepting compensation. Forcing the victim to accept compensation instead would actually make the victim worse off. So in this instance, the only way to ensure restitution is to do the gouging. If you force the victim to accept payment instead, the victim actually isn’t being made whole.

        Of course, I think the vast majority of victims in that situation would prefer the benefits of a large cash settlement to the temporary satisfaction of inflicting harm. So when it comes to the actual workings of a talionic system, the point might be merely academic.

      2. “I think you’ve hit on the reason why I think gouging the eye or crushing the car actually would constitute restitution, provided that’s what the victim actually wants.”

        That’s fairly convincing, and I’ve been mulling that over this morning as it seems to be, ultimately, a valid conclusion given my own premises. However, outside of a straight-up return of the item in question, or pure monetary compensation for the item (or personal damages), I’m not sure the victim is claiming right to a specific vehicle of compensation but rather the value of it – maybe this is why it still bothers me.

        For instance, let’s say that you burn down my house. It seems like I have a general claim to the value of that house – whether that’s the original house itself (impossible in this scenario), another house, or pure monetary compensation. It’s not clear to me that I can simply claim, specifically, YOUR house as compensation…unless you have nothing else to offer.

        Otherwise this would seem to get especially weird once we accept that what we’re talking about is trade in valuation. If you destroyed my $500 watch, could I, in lieu of you having a valuable watch, demand to have your $500 suit (this question stands whether I wish to destroy it or not in this instance)? Likewise, if we decide that my eye is worth $100,000, can I simply force you to specifically compensate me by giving me your house so that I may burn it down – or am I obliged to receive compensation (if by no other means) monetarily first?

        I feel compelled to believe that only item anyone has specific title to in any of these cases is the specific item in question (which was stolen or destroyed). If this item cannot, itself, be returned or restored, then it would seem that the compensation I’m owed is general and liquid (legal tender obviously being a least common denominator here).

        To put it more simply, I don’t think violating someone’s property rights gives you some reciprocal right to violate any specific rights of their’s. I think it simply gives you a right to compensation – restoration of the original title or compensation for the value thereof. I’m not sure that it makes sense that the offended party gets to forcefully specify titles (which the criminal, hypothetically, has ownership of) as terms of compensation; unless the criminal agrees or has no other options. However, if the latter conditions are true, I still see no problem with destruction of whatever holds that compensatory value once handed over – as it is then your property to do with as you wish.

      3. I think there are two distinct questions here. One is a moral question: What does the offender owe the victim? The other is a political-institutional question: What’s the best way to ensure that victims get what they are owed? Your argument addresses the first question, and I find it persuasive. In other words, I find myself agreeing with you that there’s no moral reason why the offender should owe the victim the precisely analogous object of which the victim was deprived. The offender just owes the victim whatever will make him whole, i.e., to return him to his pre-deprivation utility.

        But that’s where the second question come in, and here’s where I think the talionic solution is potentially interesting. It says that the victim has a right to something worth roughly as much to the offender as was the thing of which the victim was deprived. But then victim and offender are allowed to reach a Pareto-superior solution through bargaining.

      4. Fair enough – I don’t want to make it sound like I’m quibbling over small things. I think the broader questions surrounding retributive justice haven’t been worked out all that well on the liberty side. So it certainly warrants further discussion. This is a good start. Great post – and thanks for the replies =)

      5. With regards to what Jason said about making the victim whole, I think there’s a limit to how far we can pursue that end. If the victim needs to rape the defendant’s wife to be made whole, does it follow that we should allow him to do it? Of course not! The victim should be made whole in a specific way that has strict limits: by restoration of what was lost or, if that proves impossible, then financially.

        Regarding CC’s point on destroying property after a settlement, I feel that’s less likely to happen. One is less likely to destroy property they own than property in the hands of another. That being said, the person would at least have been made “whole,” albeit temporarily.

    2. From what I understand, talionic societies did take the first sort of consideration into account when determining value. For instance, if a ne’er-do-well murdered a respected patriarch in another family, the victim’s family would get to kill an equally important figure in the ne’er-do-well’s family. Of course, that sort of punishment would be unacceptable today – but in a society where family was everything, it makes sense. And it did establish incentives for families to keep their “black sheep” in line.

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