You are on page 1of 7

Ss.

Cyril and Methodius University Faculty of Law Iustinianus Primus

Analysis of Le !alionis usa"e in old a"e law #$%&'()& %& *+(,-%&.& %& .&'(/%/. 0/ *+&0/./ %& 1.&+(/. 0-23

4hile all cultures have some system of social re"ulation and conflict resolution5 law is a distinct 6henomenon in that it is written and administered retri7ution and conflict resolution. !he earliest human le"al systems were almost universally forms of le talionis5 or 8the law #le 3 of retaliation.8 !he le talionis is a law of e9ual and direct retri7ution: in the words of the ;e7rew Scri6tures5 8an eye for an eye5 a tooth for a tooth5 an arm for an arm5 a life for a life.8 !alion Law 7asically 7oils down to unconscious retri7ution on the most 7asic and 6rimitive of levels. !he idea is 6unishment that is e9uita7le to the offense. In other words5 if you steal then it 7ecomes acce6ta7le 6unishment to cut off your hand. And if you commit a ra6e5 well5 I "uess you "et the idea. 4hat is 6erha6s the most interestin" dimension to the !alion Law is its a66lication to 6sycholo"y where it is <nown as the !alion Princi6le. In Freudian 6sycholo"y much emotional trauma comes a7out as a result of the stru""le 7etween the Su6ere"o and the Id. !he Su6ere"o can essentially 7e viewed in terms of a human 7ein"=s censor> the Id is what the Su6ere"o is attem6tin" to censor. !he Id is the 6leasure 6rinci6le=s en"ine> chu""in" alon" always on full s6eed tellin" us to have indiscriminate se or that no7ody is really "oin" to miss that iPhone left ato6 a classroom des<. !he Su6ere"o is the 6syche=s 6arty 6oo6er that reminds us of often unwelcome thin"s li<e "oodness and self?6rotection. It is durin" those 6oints at which we allow the Id to tem6orarily 7lind us that the !alion Princi6le 6o6s in for some tea and crum6ets. !he earliest written code of laws was the Code of ;ammura7i5 the most famous of the @ld Aa7ylonian5 or Amorite5 <in"s of Meso6otamia. ;ammura7i=s code of laws is almost entirely 7ased on the 6rinci6le of e9ual and direct retri7ution> it 7etrays the ori"in of law in retri7utive violence. Since the le talionis is often the earliest form that law ta<es5 from it we can conclude that the 7asic function of law is reven"e and retri7ution. Unli<e direct retri7ution5 however5 the law is administered 7y the state or 7y individuals that cannot 7e victims of reven"e in return. 4hile reven"e and retri7ution threatens to 7rea< down society as 6eo6le ta<e reci6rocal reven"e one another5 reven"e as it is em7odied in law and administered 7y the state 6revents mutual and reci6rocal reven"e from tearin" the fa7ric of society a6art. Le"al codes followin" the 6rinci6le of le talionis have one thin" in common: 6rescri7ed =fittin"= counter 6unishment for an offense. In the famous le"al code written 7y ;ammura7i5 the 6rinci6le of e act reci6rocity is very clearly used. For e am6le5 if a

6erson caused the death of another 6erson=s child5 that 6erson who <illed the child #the "uilty 6arty3 would 7e 6ut to death for <illin" the child. ;ammura7i too< a wea< <in"dom and chan"ed it into an em6ire5 which was <nown as the @ld Aa7ylonian Cm6ire. ;e 7uilt on model of 6ast centuries and 6ast rulers to hel6 him in his transformation. ;e selected a ruler?"od named Mardu< to oversee his em6ire. ;ammura7i used reli"ion and the Code of ;ammura7i to <ee6 his society to"ether. !hese laws were to hel6 future Dud"es and "overnors with their rulin"s. ;e 7elieved that he was chosen 7y the Eods to deliver these laws to the 6eo6le of the land. ;ammura7i Dustified his 6olitical 6ractices 7y statin" that he did it in the name of Eod. !he Aa7ylonian Society was structured into three classes. !he Amelu were the free u66er class> wealthy 6eo6le. !his class consisted of tem6le 6riests5 hi"h?ran<in" military officers5 6alace officials5 and rich merchants that controlled lar"e 6ro6erties. !he Mus<inu were the free middle class. !hey were de6endents of the 6alace or had to lease land from the Amelu class. !he Mus<inu class was made u6 of artisans and la7ourers5 small scale farmers and merchants5 and the minor 6olitical and reli"ious officials. !hese two classes wore their hair and 7eard lon". !he Ardu or slaves were the lowest class. !he Ardu class had to shave their heads and they were 7randed. !his was to distin"uish the Ardu class from the Amelu and the Mus<inu classes. Slaves were o7tained throu"h trade5 ca6tured in war5 or they were free 6eo6le who had 7een 6unished for a certain offence or they had 7ecome a slave out of a de6t. Under the Code of ;ammura7i5 if anyone was to har7our or hel6 a slaves attem6t to runaway that 6erson would 7e 6unished 7y death. #L. 4. Fin"5 Article GH5 Cn"lish translation of ;ammura7iIs Code of Laws3. Slaves were a7le to "ain 6ro6erty and to 7orrow as a means of ac9uirin" their freedom. 4e can find some more e am6les for usa"e of le talionis in ;ammura7iIs Code of Laws: If any one 7rea< a hole into a house #7rea< in to steal35 he shall 7e 6ut to death 7efore that hole and 7e 7uried. #L. 4. Fin"5 Article BG5 Cn"lish translation of ;ammura7iIs Code of Laws3. If the 6risoner die in 6rison from 7lows or maltreatment5 the master of the 6risoner shall convict the merchant 7efore the Dud"e. If he was a free?7orn man5 the son of the merchant shall 7e 6ut to death> if it was a slave5 he shall 6ay one?

third of a mina of "old5 and all that the master of the 6risoner "ave he shall forfeit. #L. 4. Fin"5 Article GGK5 Cn"lish translation of ;ammura7iIs Code of Laws3 If a 7uilder 7uild a house for some one5 and does not construct it 6ro6erly5 and the house which he 7uilt fall in and <ill its owner5 then that 7uilder shall 7e 6ut to death. If it <ill the son of the owner the son of that 7uilder shall 7e 6ut to death. #L. 4. Fin"5 Articles BBL and BJM5 Cn"lish translation of ;ammura7iIs Code of Laws3 If a shi67uilder 7uild a 7oat for some one5 and do not ma<e it ti"ht5 if durin" that same year that 7oat is sent away and suffers inDury5 the shi67uilder shall ta<e the 7oat a6art and 6ut it to"ether ti"ht at his own e 6ense. !he ti"ht 7oat he shall "ive to the 7oat owner. If a man rent his 7oat to a sailor5 and the sailor is careless5 and the 7oat is wrec<ed or "oes a"round5 the sailor shall "ive the owner of the 7oat another 7oat as com6ensation. #L. 4. Fin"5 Articles BJH and BJK5 Cn"lish translation of ;ammura7iIs Code of Laws3 !he third sentence 6ertainin" to the rationale that 8if the Nhouse colla6ses andO <ills the son of the owner... then the son of that 7uilder NshouldO 7e 6ut to death8 contains no real rational Dustice. Althou"h the son of the owner may have 7een innocent5 the son of the 7uilder may not have had any hand in 7uildin" the house and is also therefore innocent5 so therefore it is unDust to 6unish an innocent 6erson for the harm committed 7y another. @7viously5 the a7ove rationale on Aa7ylonian Dustice is not only flawed in various manners5 7ut is also lac<in" 6racticalness5 inade9uate and unDust5 very much li<e the Dustice dealt when dealin" death 6enalties. Unfortunately5 le talionis cannot rationally 7e uniformly a66lied to every human harm committed. For e am6le5 a man intentionally <ills his nei"h7or in a fit of ven"eance while another man accidentally <ills his nei"h7ors as he is attem6tin" to 7rea< into his house. Aoth are char"ed with the same initial crime: murder5 7ut does Dustice e9uate itself to deal the same 6unishment for the man who <ills with intent vs. the man who <ills in self defenseP !he 7est e am6le in witch we can see usa"e of talion is in Article GLK and GLQ: If a man 6ut out the eye of another man5 his eye shall 7e 6ut out. If he 7rea< another man=s 7one5 his 7one shall 7e 7ro<en.

Continuin" the readin" of the Code of ;ammura7i in later articles there seems to 7e evidence that contrast the earlier views of slaves re"ardin" inDury or death done to a slave 7y means of carelessness on the 6art of another. !he slave thou"h is the lowest role in society he or she is of hi"h 6ro6erty value. !he slave is seen clearly as a re6lacea7le 6ro6erty. !his is si"nificant 7ecause there are several e am6les in the Code of ;ammura7i showin" leniency to the elites. Lastly5 critics of ca6ital 6unishment #su66orters of the le talionis rationale3 ar"ue that the true 7asis of retri7utive Dustification of ca6ital 6unishment is not at all foundational5 7ut instead5 is dee6ly rooted in feelin"s of ven"eance. Eiven5 even if ven"eance is "ranted as a natural human emotion5 critics ar"ue that it is an im6ulse which should 7e tem6ered5 Dust as we do natural inclinations of fear5 lust and an"er. ;owever5 6rinci6les of Dustice5 6rimarily those 6ertainin" to 6unishment5 should not 7e undermined 7y our e treme feelin"s5 7ut should instead5 7e 7ased on our more tem6ered ones. @nly when the natural feelin"s of ven"eance are moderated5 only then will the inclination to e ecute criminals diminish. Christian inter6retation of the 7i7lical 6assa"e has 7een heavily influenced 7y the 9uotation from Leviticus in Sesus of TaUareth=s Sermon on the Mount. In the C 6oundin" of the Law5 Sesus ur"es his followers to turn the other chee< when confronted 7y violence: 8An eye for an eye and a tooth for a tooth8. Aut I say to you5 do not resist an evildoer. If anyone stri<es you on the ri"ht chee<5 turn to him the other also. #Matthew H:JVJL5 TWSX3 4ho has 6er6etrated that horrifyin" crime a"ainst ;umanity 7efore few wee<P 4hoever they are5 the survivin" criminals must 7e 6unished accordin" to the Law5 when they will 7e Dud"ed5 their "uilt 7ein" esta7lishedY !his must 7e clear: no one should 7e 6unished only 7ecause 8they loo< li<eZ8 or 8they are of the same <indZ8 To 6unishment should "o 7eyond the 6erson of the criminal5 no 6unishment should touch their families5 their race5 their nationality5 their faith. Cye for an eye succeeds 7rilliantly in demonstratin" that the le talionis was often meant and ta<en literally5 that it still 6lays a 6owerful5 if su7mer"ed5 role in our thin<in" a7out reven"e and Dustice today5 and that in 6ractice it was not nearly as 7rutal or unfair as others5 6utatively more civiliUed ways of dealin" with the need for reven"e.

4e hear cries of reven"e ? an eye for an eyeY [ retaliation. 4e hear a7out houses of 6rayer 7ein" attac<ed5 innocent 6eo6le a""ressed in the streets5 in reven"e for the destroyed towers5 7utZ we must remem7er that the Law of !alion 6roclaims the need of a Sud"e to ma<e Sustice> Sustice needs a !ri7unal> a !ri7unal needs certitudes and see<s truthY !ruth is thera6euticY !alion is Sud"ment5 not Weven"eY #Un<nown author BMMJ5 7e"e"nun"sUentrum3.

Reference List Citations \ Erou6 of 6hiloso6hers. #Last Modification BH Suly BMMK3. Innocence and guilt, the two antagonizing forces ruling over the justice system NonlineO. Availa7le from: htt6:]]www.ilove6hiloso6hy.com]6h677]viewto6ic.6h6P f^L_t^GJVQRG NAccessed J `ecem7er BMMVO. \

L. 4. Fin" #C 6lorin" Ancient 4orld Cultures [ CA4C3.


Hammurabi's Code of Laws (English ranslation! NonlineO. Availa7le from: htt6:]]eawc.evansville.edu]antholo"y]hammura7i.htm NAccessed K `ecem7er BMMVO.

Wichard ;oo<er #4ashin"ton State University [ 4SU3 #GLLK. Last u6date Q?GR?GLLL3. Code of Hammurabi NonlineO. Availa7le from: htt6:]]www.wsu.edu]adee]EL@SSAWb]LCc!AL.;!M NAccessed H `ecem7er BMMVO.

Un<nown author #BMMJ3. Availa7le from:

alion is judgement, not revenge" NonlineO. USA.

htt6:]]www.7e"e"nun"sUentrum.at]te te]usa]AoalAUSA!err.htm NAccessed H `ecem7er BMMVO. \ 4i<i6edia5 the free encyclo6edia. #Last Modification GB Sanuary BMMV3. Code of Hammurabi NonlineO. Availa7le from: htt6:]]en.wi<i6edia.or"]wi<i]Codedofd;ammura7i NAccessed R `ecem7er BMMVO. \ 4i<i6edia5 the free encyclo6edia. #Last Modification R `ecem7er BMMV3. Eye for an eye NonlineO. Availa7le from: htt6:]]en.wi<i6edia.or"]wi<i]Cyedfordandeye NAccessed R `ecem7er BMMVO.

You might also like