Encyclopedia of Law and Economics

Living Edition
| Editors: Alain Marciano, Giovanni Battista Ramello

Lex Talionis

  • Mark D. WhiteEmail author
Living reference work entry
DOI: https://doi.org/10.1007/978-1-4614-7883-6_18-1

Definition

The classical formulation of the view that the guilty must be punished in exact proportionate to their crimes: “an eye for an eye, a tooth for a tooth.”

The lex talionis is otherwise known as the view that punishment for crimes must exact “an eye for an eye, a tooth for a tooth.” It dates at least to the law of Moses and the Code of Hammurabi, and the general idea is cited in modern times by both scholars and laypeople in support of punishment that “fits the crime.” The lex talionis is sometimes used as a justification of retributivist punishment, which requires that the guilty receive their due punishment as a matter of right or justice, although it is less of a justification and more of a statement of the proper target of punishment (the guilty) and degree of punishment (proportionality).

The lex talionis is cited by key retributivists, including its leading proponent, Immanuel Kant, who asked “what kind and what amount of punishment is it that public justice makes its principle and measure? None other than the principle of equality…. Accordingly, whatever undeserved evil you inflict upon another within the people, that you inflict upon yourself…. But only the law of retribution (ius talionis)… can specify definitely the quality and the quantity of punishment” (1797, p. 332). However, as modern retributivists and their critics alike realize – and as asserted definitively by Blackstone (1765–1769, bk 4, Chap. 1) – exact proportionality is either inhumane (such as in the case of rape), impossible (the case of multiple murders), or nonsensical (the case of attempted crime). Kant acknowledged this, asking “but what is to be done in the case of crimes that cannot be punished by a return for them because this would be either impossible or itself a punishable crime against humanity as such?” and moderated the lex talionis to prescribe instead that “what is done to [the wrongdoer] in accordance with penal law is what he has perpetrated on others, if not in terms of its letter at least in terms of its spirit” (1797, p. 363). Appropriately, it is the spirit of the lex talionis rather than its letter that has survived on in the form of modern retributivism, which emphasizes proportionality while recognizing its difficulties (Davis 1983, 1986).

The call for proportionality embodied in the lex talionis is often invoked against systems of punishment, such as deterrence, which focus on generating social benefits from punishment instead of enforcing the just deserts of the guilty. While optimally deterrent punishments – such as those recommended by the economic approach to crime – result in some degree of proportionality between crimes to create optimal incentives, they can also be disproportionately severe to compensate for high enforcement costs (Becker 1968). However, those who raise the lex talionis in argument are usually less concerned with disproportionately high punishment and more with disproportionately low ones, such as those resulting from plea bargains or judicial acts of mercy – the first of which can be justified as a regrettable compromise in the face of resource constraints (Cahill 2007) while the second is consistent with retributivism in general (Holtman 2009). At its worse, it can be used – incorrectly – to justify private acts of vengeance and “vigilante justice,” which are distinct from state-sponsored punishment (Nozick 1981, pp. 366–368; Brooks 2012, pp. 16–18). Since more refined accounts of retributivism are available that acknowledge the subtleties of punishment in both theory and practice, the lex talionis is rarely invoked in scholarly debate today.

Cross-References

References

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  2. Blackstone W (1765–1769) Commentaries on the law of England. Clarendon, OxfordGoogle Scholar
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  7. Holtman S (2009) Justice, mercy, and efficiency. In: White MD (ed) Theoretical foundations of law and economics. Cambridge University Press, Cambridge, pp 119–135Google Scholar
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Copyright information

© Springer Science+Business Media New York 2014

Authors and Affiliations

  1. 1.Department of PhilosophyCollege of Staten Island/CUNYStaten IslandUSA