Lex talionis
The Lex talionis or law of retaliation (alse "Eye for an eye"), one of the oldest laws, consists in the reciprocity of crime and punishment. This law is often symbolized by the expression “An eye for an eye, a tooth for a tooth”.
It characterizes an intermediate state of criminal justice between the vendetta system and recourse to a judge as an impartial and disinterested third party.
The word retaliation originates from talis, which in Latin means “such”, “like”, but also “similar”.
Origin
The first signs of the law of retaliation are found in the Code of Hammurabi, in 1730 BCE, in the kingdom of Babylon. This law thus makes it possible to prevent people from doing justice themselves and introduces the beginnings of order in society with regard to the treatment of crimes. The Code of Hammurabi is presented in the form of a list of more than two hundred jurisprudences and many of them are imprinted with this just reciprocity of crime and punishment. As in case law 229, 230 and 231where if the collapse of a house kills, respectively, the owner, the son or the slave of the owner, it is the builder of the house who must be condemned to death in the first case, the son of the builder in the second and in the last case, the price of the slave must be paid to the owner.
We find the reference to an eye for an eye, a tooth for a tooth in two jurisprudences of the Code of Hammurabi, 196 and 200.
We read in Aeschylus ( Choéphores, 313): “Let a murderous blow be punished with a murderous blow; to the culprit the punishment. » Plato ( Laws, X, 872 de), in connection with the parricide, makes use of the argument of authority and antiquity, and he mixes human justice as much as Providence and the law of the reincarnation of souls:“Here, then, is the doctrine whose precise exposition goes back to the priests of antiquity. Justice, we are taught, ever alert avenger of family blood, has recourse to the law of which we have just spoken, and it has, it is said, established the necessity, for whoever has committed some of this kind, to suffer in turn the very crime he committed: was his father killed? a day will come when oneself one will have to resign oneself to undergoing an identical fate by violence on the part of one's children; was it his mother who was killed? it is inevitable that one is reborn oneself by participating in the feminine form and that, that done, one leaves life at a later time under the blows of those whom one has brought into the world; it is that, from the defilement which has contaminated the blood common to both, there is no other purification…”
It may be that the law of retaliation intends to fight against an escalation of individual violence by limiting it to the level of violence suffered. The contemporary notion of self-defense proceeds from the same spirit by requiring that any response be proportionate to the attack.
A vagueness of interpretation remains, because it is nowhere clearly stated that the law of retaliation only represents the maximum authorized response. Some interpretations present it on the contrary as the adequate response, which can lead to violence and counter-violence that never ends.
Considered in the latter case as barbaric, unjust, and in any case contrary to the interests of public order, it is replaced for certain crimes by pecuniary fines or prison sentences, which can be considered as the first penalties alternatives.
They do not necessarily satisfy the victim, and we can probably think back to the wisdom of the pioneer Daniel Boone who, elected judge by his fellow citizens, pronounced on the contrary penalties of reparation, centered on the victim and not on the criminal. Thus, whoever had injured a horse was condemned to pull the plow in its place until the animal was again able to do so.
In everyday English, we find the same principle in the term retaliation, which expresses the same feeling of retaliation, and which shares the same origin.
In religion
In Judaism
In the Torah
The formula "eye for an eye, tooth for a tooth" appears three times in the Pentateuch:
“But if misfortune befalls, you will pay life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise. »
— Exodus 21.23-25
“If a man strikes any human being to death, he will be put to death. If he strikes an animal to death, he will replace it — life for life. If a man causes an infirmity in a compatriot, we will do to him what he has done: fracture for fracture, eye for eye, tooth for tooth; one will provoke in him the same infirmity that he provoked in the other. Who strikes an animal must repay; who strikes a man is put to death. You will have a single legislation: the same for the emigrant and for the native. »
— Leviticus, 24.17-22
“Your eye will be pitiless: life for life, eye for eye, tooth for tooth, hand for hand, foot for foot. »
— Deuteronomy, 19.21
What is added:
“If anyone sheds the blood of man, through man his blood will be shed. »
— Genesis IX :6
But unlike the legal codes in force at that time in the Near East, including the Code of Hammurabi, the Torah clearly states that:
“Fathers shall not be put to death for sons, and sons shall not be put to death for fathers: each shall be put to death for his own sin. »
—Deuteronomy, 24.16
Various passages of the Bible also advocate a morality of overcoming when reconciliation is possible:
“Thou shalt not take revenge, nor bear grudge against the children of thy people, but thou shalt love thy neighbor as thyself. I am the Eternal. »
— Leviticus, 19.18
“Do not say: As he treated me, I will treat him, I render to each according to his works. »
— Proverbs, 24.29
In the Talmud
This rule indicates the need for compensatory equivalence in punishment. The Talmud in the Nezikin order, treatise Baba Kama, argues that the verses Exodus 21, 23-25; Leviticus, 24.17-22 and Deuteronomy, 19.21 cited above cannot be taken literally since it is impossible to determine whether, for example, the consequences of the loss of an eye by a person will be equivalent to the consequences from the loss of one eye for another.
The general principle retained by Jewish Law for any physical damage received is the payment of compensation for:
- Nezek, the value of permanent physical disability measured in terms of loss of professional earnings;
- Shevet, the loss of income while recovering from the injury sustained;
- Tzaar, the price of pain;
- Ripouy, the cost of medical expenses;
- Boshet, shame inflicted.
The exact value of these reparations must be judged on a case-by-case basis by a rabbinical court.
Rabbinic Judaism thus retains from the law of retaliation only the idea of just financial compensation, except for capital crimes under the principle that human life is priceless and therefore cannot be financially compensated.
In Christianity
Jesus in the New Testament says, according to Matthew:
"You have learned that it has been said: 'an eye for an eye and a tooth for a tooth'. And I tell you not to resist the wicked. On the contrary, if someone slaps you on the right cheek, also offer him the other. To whomever wants to take you before the judge to take your tunic, leave your coat too. If someone forces you to take a thousand steps, take two thousand with him. To whom you ask, give; whoever wants to borrow you, don't turn your back. »
— Matthew 5,38-42
This verse has given rise to two great schools of interpretation. The first school is that of the radical pacifists (for example, Erasmus), who interpret the word of Jesus as an opposition to the law of retaliation. The second school is that of the contextualists (e.g. Saint Augustine and Saint Thomas Aquinas) who take into account the context of the discourse and affirm that Jesus did not come to abolish the law of Moses, but to fulfill it (Mt 5, 17), and that his word is not to be understood in opposition to the law of retaliation, but in depth in relation to it. According to this second school, turning the other cheek does not mean not reacting, but putting oneself, when reacting, in a disposition of heart which consists in not acting for one's own interest.
In islam
The Quran expresses itself thus:
“O believers! You have been prescribed retaliation for those killed: free man for free man, slave for slave, woman for woman. But whoever his brother has forgiven in some way must face a proper request and must pay damages graciously. This is a relief from your Lord and a mercy. So whoever after that transgresses, will have a painful retribution. »
— Sura II, verse 178
“It is in retaliation that you will have the preservation of life, O you endowed with intelligence, thus will you attain piety. »
— Sura II, verse 179
“We sent down the Torah in which there is guidance and light. It is on its basis that the prophets who submitted themselves to Allah, as well as the rabbis and the doctors judge the affairs of the Jews. For they have been entrusted with the custody of the Book of Allah, and they are its witnesses. So do not fear people, but fear Me. And do not sell My teachings cheaply. And those who do not judge by what Allah has sent down, these are the disbelievers. »
"And We have prescribed for them life for life, eye for eye, nose for nose, ear for ear, tooth for tooth. Wounds fall under the law of retaliation. Afterwards, whoever renounces it out of charity, it will be worth an expiation to him. And those who do not judge by what Allah has sent down, those are wrongdoers. »
— Sura V, verse 44-45
“Soul for soul, eye for eye, nose for nose, ear for ear, tooth for tooth, retaliation for wounds. »
— Sura V, verse 45
Islamic law — fiqh — establishes four conditions for the death penalty for the murderer to be applicable:
- That the death penalty be demanded by the families of the victims : Muslim jurists are based on a prophetic tradition (hadith) of the Prophet Muhammad: "He whose (a relative) has been killed, or he who has been injured, has the choice between three possibilities: either he asks for retaliation, or he forgives, or he takes financial compensation”.
- That there is irrefutable proof of guilt : Indeed, a simple presumption is rejected by lawyers or the presence of real but insufficient clues. Muslim jurists establish the following rule: "Penalties and retaliation are null and void as soon as a doubt is present".
- That it is proven that there was intention to kill : the manslaughter or the blows and wounds having involved the death without intention to give it are not subject to the death penalty in Islam.
- That there is no presence of mitigating circumstances : Muslim law renders the application of the death penalty null and void if there is the presence of mitigating circumstances despite the presence of the three preceding conditions. So it is in the case of self-defence.
Of our time
Modern Western law no longer applies the law of retaliation in criminal matters, thus article 2 of the European Convention on Human Rights only allows the use of force when absolutely necessary. It is seen as more about private revenge than justice. In principle, the sentences handed down today serve to punish the culprit, but they are coupled with a desire to prepare the convicted person for his reintegration into society after a period of rehabilitation. At the same time, in civil matters, the concept of damages constitutes the financial reparation, to which the person who has suffered moral damage and/or damage to his or her assets can claim (material damage).
On the other hand, it can be encountered in certain States applying Islamic law, such as in Nigeria, where the restoration in the northern States of Sharia has seen the introduction of a law of retaliation in matters of injury or homicide, with option for the victim or his heirs to renounce it, in favor of financial compensation.
Retaliation law and the death penalty
Retaliation is used as an argument by supporters of the death penalty, sharing the idea of Joseph de Maistre, who considers that a person who has killed deserves death, the only fair punishment. The opposite point of view was widely defended by Beccaria and Victor Hugo ( "What does the law say? You will not kill! How does it say it? By killing!" ).
In the VINTER AND OTHERS v. UNITED KINGDOM judgment of July 9, 2013, the European Court of Human Rights held that the mandatory real life sentences imposed for certain crimes by the United Kingdom fell under the law of retaliation and were incompatible with Article 3 of the European Convention on Human Rights and international criminal law case law prohibiting disproportionate penalties.
Law of retaliation and self-defense
The contemporary concept of self-defence, which must be proportionate to the attack, may seem to be a legacy of the Law of Retaliation in its limiting sense. Self-defense consists in protecting oneself, others, or property from attack by a third party. However, in the context of self-defence, it is not a question of an a posteriori response consisting of revenge permitted and framed by the Law (as in the context of the Law of Retaliation), but of a preventive act. intended to protect the person, others, or property from unjustified or illegal interference.
French Penal Code, article 122-5:
“ Is not criminally liable the person who, in the face of an unjustified attack on himself or others, performs, at the same time, an act commanded by the necessity of the self-defense of himself or others, except if there is a disproportion between the means of defense employed and the seriousness of the attack.
Is not criminally liable the person who, to interrupt the execution of a crime or misdemeanor against property, performs an act of defence, other than intentional homicide, when this act is strictly necessary for the purpose pursued. provided that the means employed are proportionate to the seriousness of the offence. »
Law of retaliation and game theory
There is no optimal strategy in the iterated Prisoner's Dilemma problem. However, many experiments lead to the conclusion that there does not seem to be a strategy that is systematically better than the so-called Tit for Tat, based on the law of retaliation, and that if this one is rarely the best, it is consistently ranks among the best. Most interactions in a society can be reduced to a non-zero sum game.