Lex Talionis and the Old Testament

How should we understand ‘an eye for an eye’?

Most folks have heard of the phrase under question, and one need not know Latin to understand that it refers to the law of retaliation. It involves the principle of retributive justice in which the punishment of the criminal should match or correspond to his crime.

While I here deal with this in the context of the Bible, other cultures besides ancient Israel ran with it. It was a basic principle of ancient Babylonian law as well as Roman law for example. In the Old Testament we have at least three clear passages on this:

-Exodus 21:22-25 When men strive together and hit a pregnant woman, so that her children come out, but there is no harm, the one who hit her shall surely be fined, as the woman’s husband shall impose on him, and he shall pay as the judges determine. But if there is harm, then you shall pay life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe.

-Leviticus 24:17-22 Whoever takes a human life shall surely be put to death. Whoever takes an animal’s life shall make it good, life for life. If anyone injures his neighbor, as he has done it shall be done to him, fracture for fracture, eye for eye, tooth for tooth; whatever injury he has given a person shall be given to him. Whoever kills an animal shall make it good, and whoever kills a person shall be put to death. You shall have the same rule for the sojourner and for the native, for I am the Lord your God.

-Deuteronomy 19:21 Your eye shall not pity. It shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.

Here I can only give a few short remarks about all this. First, commentators are divided as to how literally one was to have taken the words about “fracture for fracture” and so on. Some, like Kenneth Mathews, argue that we should not take this literally:

Verses 17-22 establish two important principles governing the community’s policy of capital punishment. First, there was a difference between the murder of a human being and the killing of an animal. Although the killing of an animal was important, the killing of a human being was far more egregious….

 

The second principle to be followed regarding the death sentence was just as important. It must be practiced with evenhanded justice by matching the severity of the punishment with the severity of the crime. When the Bible calls for “fracture for fracture, eye for eye, tooth for tooth” (v. 20; cf. Exodus 21:23-27), the passage is not to be taken literally. It is not calling for the maiming of a person. Rather, it removes personal vendettas (Leviticus 19:18), which inevitably escalate into excessive acts of revenge. The Law was actually designed to restrict the extent and severity of the penalty. “‘Vengeance is mine, I will repay, says the Lord’” (Romans 12:19; cf. Deuteronomy 32:35). It was calling for impartial judges to an equitable penalty that fit the crime, the principle of law known as lex talionis, a Latin phrase meaning “law of retaliation.”

As other commentators have noted, while today we might be able to cleanly and surgically remove a person’s eye or tooth, if it was attempted back then it could have resulted in more than a removed body part – it could have resulted in the person’s death.

Thus something equivalent but not exact may have been used as the punishment, as the tit for tat punishment might have too easily violated the principle of proportionality and fair recompense. Moreover, passages such as Exodus 21:26 indicate other forms of punishment: “When a man strikes the eye of his slave, male or female, and destroys it, he shall let the slave go free because of his eye.”

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But other commentators, such as Roy Gane say that we should see this taken as more or less literally:

Literal retaliation is clearly expressed by the proposition “as” and the verb “do” in Leviticus 24:19 (“just as he has done, so it shall be done to him”; NASB emphasis supplied) and Deuteronomy 19:19 (“then do to him as he intended to do to his brother”. . . . When a person is the victim of permanent injury, retaliatory penalties (“fracture for fracture, eye for eye, tooth for tooth,” v. 20) are actually physically inflicted on the culprit, as shown by the “as . . . done” formulation (vv. 19-20).

And then there is the related question as to whether the ancient Israelites actually did implement such retaliation – at least very often. We do not have too many OT passages telling us that the death penalty in particular and these ‘eye for eye’ penalties in general were carried out. And it seems monetary compensation may have been a more usual way to proceed, and not tit for tat corporal punishment.

By way of discussing all this in a bit more detail, let me offer a few other commentators on lex talionis. Douglas Stuart has an excursus on this issue in his 2006 commentary on Exodus. He says this:

The goal of the laws that use the wording “life for life, eye for eye, tooth for tooth,” is that the penalty imposed for causing physical injury must be appropriate to the nature of the injury. In other words, a mere monetary penalty (a fine) cannot be considered adequate justice when someone has been permanently maimed by a person in a manner that clearly demands a punishment. This kind of law represents an advance on the non-Israelite biblical-era laws, which routinely provided for fines as satisfying the legal requirement of justice in the case of a superior person’s permanently injuring an inferior person. By contrast to the laws of pagan nations, the law governing God’s chosen people Israel required real equity at law and forbade people with money being able to buy their way out of criminal penalties.

 

Talion laws are easily misunderstood if taken literalistically. They usually do not mean what they sound like they are saying to the modern ear. No evidence exists that any judges in the ancient world ever actually required a literal application of talion law beyond the first of its terms, “life for life.” In cases of murder, the murderer was put to death as a “life for life” satisfaction of the law. But beyond that, there was no actual taking of someone’s eye in exchange for his having ruined the eye of another person, nor was a tooth knocked out of a person in exchange for a tooth knocked out of someone else by that person and so on through the “bruise for bruise” penalty. Instead, expressions like “eye for eye” were understood idiomatically to mean “a penalty that hurts the person who ruined someone else’s eye as much as he would be hurt if his own eye were actually ruined also.” The precise penalty was left up to the judges by talion law; it might involve anything from banishment to loss of property (and/or property rights) to punitive confinement to special financial penalties to corporal punishment to public humiliation, or to any combination of these. In support of this understanding of how talion laws were actually applied, an example of the nonliteralistic application of talion law follows immediately in vv. 26-27, in which the case of a servant’s master damaging the eye or tooth of a servant required the loss of the servant’s labor, not the gouging out of the master’s eye or tooth.

 

The goal of talion law was always a simple one: to see that full justice was done. Its unique wording (“x for x, y for y”) conveyed to ancient Israelites an important principle, namely, that someone who permanently injured another person ought to be fully punished in a way that really “hurt.”

And Mark Rooker offers these comments:

The central theme of this section is that of commensurate punishment for a crime, what has been called lex talionis. Retribution was to be fair, not arbitrary (Judg 1:6–7 may be an example). An application of the principle may be found in Deut 19:16-19, where a false witness was to suffer the exact punishment that would have been rendered to the man against whom he had made accusation. The principle was not always carried out literally (see, however Deut 25:11-12) except in the case of an offense like murder, where life must be given for a life since human beings are made in the image of God (see Num 35:31). Otherwise this principle was a guide to the Israelite judges that punishment should be fair and should fit the crime when crimes were perpetuated against animals or caused bodily injury. As a guide the lex talionis functioned as a judicial generalization.

The believer today may well wonder how all this fits in with New Testament thought and ethics – especially the teachings of Jesus. That matter is discussed in my follow-up article: billmuehlenberg.com/2022/02/07/lex-talionis-and-the-new-testament/

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One Reply to “Lex Talionis and the Old Testament”

  1. The lady at the courthouse wears a mask and holds a balance because justice is meant to be balanced but this is why we are told to do justice *and* to love mercy. Mercy means you wear the cost yourself instead of taking retribution.

    The exceptionally good thing about the “eye for an eye, life for a life” scripture, however, is not simply that it teaches us justice but that it was one of the parts of the Mosaic law that made it legal for Jesus to give His life for us.

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