CHAPTER SIX. Lex Talionis

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IN THE Hebrew Bible, an individual found guilty of intentional killing was

subject to the most severe penalty, execution.1 In our analysis of the polluting

effects of homicide, we observed that the only means of removing the

defilement caused by a homicide was the execution of the intentional killer

or the death of the high priest in the case of an accidental killer. The execution

of the intentional killer is warranted for another reason, and in order to

illuminate this aspect of the punishment, we must turn to another legal text.

1Although the remedy for premeditated murder is execution (Exod 21:12, 14), Martin J. Buss

holds the view that the same texts that have been read as proof of capital punishment for

homicide need to be understood differently. He argues that the phrase tmwy twm, generally rendered

as “[the murderer] shall be killed,” should be understood as “he may be killed” or “he is liable

to be killed” in light of the permissive sense of the imperfect (“The Distinction between Civil

and Criminal Law in Ancient Israel,” Proceedings of the SixthWorld Congress of Jewish Studies

1973 [Jerusalem:World Congress of Jewish Studies, 1973], 1.55–56). Buss would have, in fact,

sharpened his argument if he had relied upon the nuance of potentiality inherent in Hophal

verbs because the imperfect can also express the sense of obligation as well as that of permission.

(Cf. the discussion on the modal nuances of Hophal inWaltke and O’Connor, An Introduction

to Biblical Hebrew Syntax, 445, 452.) Whether this clause expresses permissivity or obligation

depends on its context. In this case, the legal context would militate against the permissive

sense because of the point of a statute – it directs a particular course of behavior. Otherwise,

the sense of permissibility would be found in many legal apodoses, rendering them contentless.

Therefore, it is clear that the penalty for premeditated homicide is death.

The sole focus of Lev 24:17–21 is to highlight the punishment for assault

and for killing, whether the victim is a human being or an animal:

If a man strikes another and kills him, he shall surely be killed. The

one who strikes an animal and kills it shall make restitution, a life

for2 a life. If a man maims his fellow, as he has done so shall it be

done to him, a fracture for a fracture, an eye for an eye, a tooth for

a tooth, as he maims a man so shall it be done to him. The one who

strikes an animal [and kills it] shall make restitution, and the one who

strikes a man [and kills him] shall be killed. You shall have one law

for both resident alien and citizen, for I am the Lord your God.

In order to understand Lev 24:17–21, we must analyze its literary form.

First of all, the homicide laws in Lev 24:17–21 are embedded in an oracular

response to a case of blasphemy, recounted in 24:10–12. The juxtaposition

of blasphemy and deadly assault can be explained on two levels, conceptual

and formal/linguistic. Both are to be applied to the Israelite citizen and

to the alien. Both are capital cases whose statutes contain the formal sentence

of tmwy twm. Thus, there are two linkages, a conceptual and a formal/

linguistic.

Second, the oracular response in this episode is similar to the response

in two of the three other episodes of cases brought to Moses whose law is

unknown – Num 9:6–14 and 27:1–11, but not 15:32–36 – in that the ruling

issued is more comprehensive than one solely addressing the case that initially

required a response.3 Num 9:6–14 deals with those who were impure at the

time of the paschal offering. The response contains the law pertaining to that

particular case, as well as the law for those who were ritually pure at the time

of the feast who refused to take part. Num 27:1–11 treats the question of

the inheritance of the daughters of Zelophehad. The response not only deals

with them but also provides a complete list of inheritors in order of priority:

son, daughter, brother, paternal uncle, nearest clan relative. In contrast, the

law in the fourth episode, Num 15:32–36, is confined to the case of a man

gathering wood on the Sabbath.

These four ad hoc legal situations present adjustments to covenantal law.

Moses is unable to decide them on the basis of given covenantal law and

2The meaning of tjt in this verse and in the following verses is “in place of, in lieu of, instead of,”

expressing exchange (e.g., Gen 22:13; cf. Ronald J. Williams, Hebrew Syntax: An Outline [2d

edition; Toronto: University of Toronto Press, 1976], 59, but compare Waltke and O’Connor’s

understanding of this as an abstract locational use, An Introduction to Biblical Hebrew Syntax,

220). This preposition is used in Deut 22:29 with a noun clause, hn[ r`a tjt, “in lieu of having

forced her.”

3Fishbane, Biblical Interpretation in Ancient Israel, 103. The oracular response is an H framework

for P material. Cf. Knohl, The Sanctuary of Silence, 121.

must receive new information.4 What judicial difficulty underlies the case in

Leviticus 24? The description provides only a few details: During the course

of a fight with an Israelite, a person of mixed parentage blasphemed the

Israelite God, YHWH. The restatement of the case in casuistic form presents

the rule that all who blaspheme YHWH are subject to the jurisdiction of

Israelite law without regard to the ethnic status of the offender. Blaspheming

YHWH is punishable whether the offender is Israelite without question or

is of mixed parentage whose covenantal status is unclear. The ruling in this

case is that the law is to be applied to the citizen and alien alike.5 The point

of the law on assault being appended to the blasphemy law is that penalties

for killing an animal and for killing a person also apply to citizen and alien

alike. (We can extrapolate from this statement the recognition that biblical

differs from nonbiblical law on penalties for killing.)

The emphasis on the same law applying to citizen and alien is integral to

the passage whether or not the assault law was original to the passage. The

start and conclusion of this pericope contain similar wording: Lev 24:17,

vEn t\f vEo hRsm. ¢π htZOE vEo hGrW tmŸ Oy tOm !1 vEoAlŁ hD yH vy6¨; and 24:21,

tmŸ Wy !1 hGrW hRsm. ¢π htZi hGrW. This phenomenon, denoted by the technical

term Wiederaufname, often indicates interpolated material.6 Although this

phenomenon is present in Lev 24:17–21, this does not eliminate an organic

connection between the attached material and that to which it is attached.

There is an indistinct boundary here between authorial and scribal activities,

if indeed authorship and scribal transmission are separate at all.7

The substance of the section dealing directly with homicide is reflected

in its literary structure (Lev 24:17–21):

a. (v. 17) tmwy twm !da `pn lk hky yk `yaw

b. (v. 18) `pn tjt `pn hnml`y hmhb `pn hkmw

c. (v. 19) wl h`[y @k h`[ r`ak wtym[b !wm @ty yk `yaw

d. (v. 20a) @` tjt @` @y[ tjt @y[ rb` tjt rb`

c_. (v. 20b) wb @tny @k !dab !wm @ty r`ak

4Lev 24:10–23 does not take into account the principle that a person may only be punished

for conduct defined as criminal before he acted, a concept termed legality in American law. Cf.

Dressler, Understanding Criminal Law, 29.

5The equality of alien and citizen is a major theme of H (Knohl, The Sanctuary of Silence, 21).

Cf. Lev 17:8, 10, 12, 13, 15.

6The significance of Wiederaufnahme for literary criticism is discussed by Curt Kuhl, “Die

‘Wiederaufnahme’ – ein literarkritische Prinzip?” ZAW 65 (1952), 1–11. An alternate use of

the term is discussed in Shemaryahu Talmon and Michael Fishbane, “Issues in the Ordering

of Selected Chapters of Ezekiel” [Hebrew], Tarbiz 42 (1972–1973), 35–38 (a translation of

this article is “The Structuring of Biblical Books: Studies in the Book of Ezekiel,” Annual

of the Swedish Theological Institute in Jerusalem 10 [1976], 143–146); and Talmon, “The

Presentation of Synchroneity and Simultaneity in Biblical Narrative,” in Literary Studies in the

Hebrew Bible: Form and Content (Jerusalem: Magnes Press, 1993), 112–133.

7Fishbane, Biblical Interpretation in Ancient Israel, 86.

b_. (v. 21a) hnml`y hmhb hkmw

a_. (v. 21b) tmwy !da hkmw

a. If a man strikes another and kills him, he shall surely be killed.

b. The one who strikes an animal and kills it shall make restitution, a

life for a life.

c. If a man maims his fellow, as he has done so shall it be done to

him,

d. a fracture for a fracture, an eye for an eye, a tooth for a tooth,

c_.as he maims a man so shall it be done to him.

b_. The one who strikes an animal (and kills it) shall make restitution,

a_. and the one who strikes a man and kills him shall be killed.

The chiastic structure of the passage reveals its trifurcated content: 1) Lex

talionis applied to nonfatal bodily injuries; 2) the differentiation between the

penalty for killing a man and for killing an animal; and 3) the equivalence

of lex talionis applied to the death of an animal, in the form `pn tjt `pn, and

hnml`y, compensation.

The problem of lex talionis is revealed most acutely in this passage. The

statute makes a clear distinction between the remedy for the killing of a human

being and that for killing of an animal – execution in contrast to compensation.

What is striking is that the principle enunciated for the killing of

an animal is “a life for a life,” a statement usually understood as forbidding

compensatory payments, but the remedy for killing an animal is compensation.

The penalty for slaying a human being is death, but lex talionis is

not used as the reason. Moreover, the principle of punishment for nonfatal

bodily injury is “a fracture for a fracture, an eye for an eye, a tooth for a

tooth.” At first glance, it would appear that there is a relationship between

“a life for a life” and “a fracture for a fracture, an eye for an eye, a tooth for

a tooth” simply on the basis of linguistic similarity: Both are formulations

of lex talionis and both make an equivalence between injuries. However, the

first is applied to the death of an animal, the second to the nonfatal injury of

a human being, and neither is applied to the death of a human being. What,

then, is the significance of lex talionis?

First of all, the polarity between retaliation and compensation vis- ` a-vis a

fatality is not as complete as may initially be thought. Certainly, in Leviticus,

lex talionis is set in a context in which the authors felt that talionic punishment

involved compensation.8 Secondly, the remedy for killing an animal is

that the animal must be replaced in kind – the object lost is replaced by an

object of the same species, not in money.9 There is a cognitive distinction between

repaying in kind and paying in currency. Lex talionis, then, expresses

8Exod 21:23; Lev 24:18.

9Daube, “Lex Talionis,” 135–139. The verb !l` means “to restore,” to be distinguished from

paying a pecuniary mulct (Exod 21:36, 37; 22:2, 3, 4, 5, 6, 8, 10, 11, 12, 13, 14). With one

a principle of legal symmetry, of repaying in kind.10 Those guilty of physical

assault are made to suffer the exact harm they inflicted on others. This is in

sharp contrast to fines, a fixed amount to be paid in particular circumstances.

In the case of killing an animal, lex talionis means replacing the particular

animal killed instead of paying a fine. In the case of killing a person, lex

talionis means the killer is killed. The act of punishment must be similar to

the offense in the aspects in which the original act was wrong.11 In a sense, it

is a reversal of roles: The original agent of harm becomes the recipient of the

same action of the type that constituted the offense. The killing of animals

is treated in the same way as the killing of humans.

Lex talionis appears in two other statutes, Deut 19:16–21 and Exod

21:23b–25. In the law on false witnesses in Deut 19:16–21, lex talionis

emphasizes that the penalty applied to the false witness must be the same

penalty that would have been applied to the accused. The false witness suffers

what the victim of his lie would have suffered (or did suffer). Lex talionis

articulates a concept of equivalence.

The principle of equivalence comes across even more strongly in Exod

21:23b–25: This statute concludes in the distinctive formulation of lex talionis,

a contrast to the casuistic style in which these provisions commence. The

talion formula in verse 23b exhibits a different construction from the casuistically

formulated statutes because there is no attempt to arrange the cases

in conditional clauses within a series of main and subordinate conditional

exception (Exod 21:34), wherever payment in currency is required, the verb used for “to pay”

is @tn (Exod 21:19, 22, 30, 32; 22:16).

10Tikva Frymer-Kensky, “Tit for Tat: The Principle of Equal Retribution in Near Eastern and

Biblical Law,” BA 49 (1980), 230–234. Some have argued that the term, lex talionis, is correctly

applied only to nonfatal bodily injuries and to punishing the offender by making him subject to

the same injury as he inflicted. Cf. Jackson, Essays in Jewish and Comparative Legal History,

281, n. 1; Yaron, The Laws of Eshnunna2, 262.

11JeremyWaldron, “Lex Talionis,” Arizona Law Review 34 (1992), 34–35, 42–43. Lex talionis

should not be interpreted as imputing strict liability without any consideration of the intention

of the offender because it is presented as a principle of determining punishments for offenses.

It is not put forward as a principle treating accidental deaths in the same way as intentional

homicide. Some have argued that this literary structure should be isolated as a remnant of a

stage in which the intentions of a killer were not considered. Alt argues that since lex talionis

does not take into account the subjective guilt of the offender, it exacts a strict penalty based

on the external aspects of a crime (“The Origins of Israelite Law,” 135). Alt was unable to shed

light on the origin of lex talionis (“Zur Talionsformel,” in Kleine Schriften zur Geschichte des

Volkes Israel [Munich: C. H. Beck’sche Verlagsbuchhandlung, 1953 (1932)], 1.341–344). Frank

Cru¨ semann argues similarly and adds that a contemporary book of law may contain technical

terms and formulations and refer to legal institutions created hundreds of years earlier (The

Torah: Theology and Social History of Old Testament Law, 113). The presence of these fixed

forms in a contemporary book of law cannot invalidate its interpretation as a self-contained

lawbook of its time. However, lex talionis is not applied as anything other than a principle

of equivalence in particular cases, and there is no evidence that it would be applied as an

articulation of specific punishments for injuries.

sentences. Lex talionis is meant here to be of general application – it is not

limited to the single case, fatal injury to a pregnant woman, to which it

now applies. It mentions many injuries, none of which are fatal assault on a

pregnant woman. Indeed, the principle of talionic retribution contradicts the

statutes on injury because in a case of assault according to Exod 21:18–19,

the offender must pay compensation. Why then is a talionic formula used in

a statute on injuries not mentioned in the talionic formula? In biblical law,

principles are expressed in specific terms. The talionic formula does not refer

to “a burn for a burn” as a particular punishment. Rather, it uses specific

injuries to articulate equivalence as a principle of punishment.

This principle of equivalence applies to homicide in general. Execution

as the penalty is to be understood as an equivalence. The penalty is similar

to the slaying in the aspect in which the original slaying was wrong. It is a

reversal of roles: The original agent of harm, the killer, becomes the recipient

of the same action of the type, killing, that constituted the offense. This is

the principle underlying execution as the penalty for intentional homicide.

Gen 9:5–6 is an expression of lex talionis in a literary context:

5 But your own lifeblood I will require; of every beast I will require it;

of man for his fellow man, I will require human life. 6 Whoever sheds

the blood of man by man shall his blood be shed, for in his image did

God make man.

The death penalty expresses an equivalence between the offense and the manner

in which the remedy is carried out. The punishment is the embodiment of

lex talionis: The killer is himself killed. Other dimensions of the punishment

are also reflected in this text. Emphasis is placed on the importance of blood

as the life force of the victim: The only way that the spilling of blood can be

undone is for the blood of the offender to be spilled as punishment. Moreover,

God takes a particular interest in the punishment of homicide. It is an

offense against God because the divine image is reflected in human beings,

and the elimination of homicide occupies a central place in the re-creation

of society after the Deluge.

Cuneiform law operates differently because the killer may be subject to

two radically different punishments, being forced to pay compensation or

being killed. These punishments are the means of undoing the wrong, but

not in the same way that biblical punishment operates because the biblical

punishment uses the same means in punishment as was used in the offense.

The loss is made good in cuneiform law, but not through the same action as

the offense. Rather, the cuneiform laws on homicide reflect concern with the

status of the victim and how that status affected the individual suffering the

loss and the type of loss involved.

First, the lowest status is that of slave. Although in general, the statutes

in cuneiform law collections may be divided into delicts against property

and against persons,12 the status of slave straddles the distinction – he is a

person who is property. Whenever a slave is injured, this is conceived as an

offense against the owner of the slave because the slave is the property of his

master. Therefore, the penalty for the death of a slave is always in terms of

property:

LL f

If a . . . strikes the slave woman of a man and causes her to lose her

fetus, he shall weigh and deliver 5 shekels of silver.

LE 23

If a man had no claim against a free man yet distrained the man’s

slave woman, detained the distrainee in his house and caused [her] to

die, he shall replace 2 slave women to the owner of the slave.

LE 55

If it gored a slave and caused [him] to die, he shall weigh out 15

shekels of silver.

LE 57

If it gored a slave and caused him to die, he shall weigh out 15 shekels

of silver.

The master’s loss must be made good. This is, of course, in partial contrast

to the statute in Exod 21:20–21, which stipulates that an Israelite master

who, in the course of disciplining his slave, causes his immediate death is

subject to the same punishment as the killer of any other individual. If the

slave dies sometime later, this is not considered homicide but an unforeseen

effect of a beating, and the death of the slave is the master’s loss. If a slave is

gored, his master receives compensation. The slave in Israelite law occupies

an intermediate position, generally considered chattel, sometimes not.

Since a slave is property, compensation can be paid in two forms, a fixed

amount or a replacement of the slave. The fixed amount is the general rule,

while the replacement of the slave appears in only two statutes on unlawful

death, LE 23 and LH 231. The penalty in LE 23 is based on the issue of

wrongful appropriation rather than of unlawful killing:

LE 23

If a man had no claim against a free man yet distrained the man’s

slave woman, detained the distrainee in his house and caused [her] to

die, he shall replace 2 slave women to the owner of the slave.

The sanction here is a penalty in kind. Two slave women are to be returned

in place of the one taken wrongfully and killed. In similar logic, misappropriation

of a slave requires the return in double of the lost property in other

12Szlechter, Les Lois dEˇsnunna, 117; Yaron, The Laws of Eshnunna2, 256–257.

provisions of LE. So, in LE 49, two slaves are to be returned as a penalty for

harboring one as a fugitive: “If a man should be seized with a stolen slave

or slave woman, a slave shall lead a slave, a slave woman shall lead a slave

woman.”13

The same principle also informs varied statutes in LE, such as LE 25,

where the bride-price must be returned in double: “If a man comes to claim

[his bride] at his father-in-law’s house but his father-in-law refuses [?] him

and then gives his daughter to another, the father shall return twofold the

bride-wealth he received.” However, in LE 34–35, the wrongfully taken child

of the equivalent status is to be given back alone: “If a slave woman of the

palace gives her son or her daughter to a commoner/dependent for rearing,

the palace shall remove the son or daughter whom she gave. But the one who

takes the child of the slave woman of the palace in adoption shall restore

[another slave of] equal value for the palace.” This penalty is imposed on

the commoner/dependent, not on the slave woman who gave the child to the

commoner, presumably because the slave woman did not have the means to

possess or buy a slave herself. In LE 33, “If a slave woman acted to defraud

and gives her child to a woman of the aw¯ılu [free] class, when he grows

up, should his master locate him, he shall seize him and take him away”:

Doubling is not imposed here because the child has now grown up and is no

longer in the care of another who can be forced to pay the double penalty.

Since the adult is in fact a slave, he is taken as a slave.

By contrast, the penalty of replacing a slave in LH 231 is generated by

the logic of the remedies in the adjoining cases:

231

If [the house that collapses] causes the death of a slave of the householder,

he shall give to the householder a slave of similar value for

the slave.

Thus, if a slave is killed, a new slave is provided. This follows the logic of

the previous statutes, LH 229–230:

229

If a builder constructs a house for a free man but does not make his

work sound and the house that he constructs collapses and causes the

death of the householder, that builder shall be killed.

230

If it causes the death of a son of the householder, they shall kill a son

of that builder.

13Although the wording of the apodosis in LE 49 is cryptic, it is probable that `IR `IR GEME2

GEME2 i-re-ed-de, “a slave shall lead a slave, a slave woman shall lead a slave woman,”

indicates that the original slave is to be returned along with an additional slave. See Roth, Law

Collections, 70, n. 26.

Whatever is lost from the point of view of the head of the household must

be replaced. In LH 229, thus, if a builder fails to construct a sound building

and the head of the household dies in its collapse, the builder is executed. In

LH 230, if a son is killed, the builder’s son is executed.

The slave’s inferior status has another effect. Since the remedy for the

unlawful death of a person other than a slave may be either pecuniary or

capital, the relationship between the sanction for the death of a nonslave and

a slave operates in two modes. In some statutes, when a slave is killed, the

penalty to be paid by the offender follows along the same lines as the penalty

for killing a free person in that the penalty for killing a slave is simply some

amount less than that for killing a free person. This occurs when the penalty

is purely pecuniary. The penalty in LL d for causing a woman of free status

to abort her fetus is thirty shekels; in LL e, it is reduced to five shekels for

a female slave. LE 54–57 mandates lower penalties for the death of slave

caused by a goring ox or vicious dog, fifteen shekels as opposed to forty

shekels for a free person. However, in other statutes, when a slave is killed,

the penalty is of a different species from the penalty for killing a human

being. The killer is executed for the death of a nonslave but is forced to pay

compensation for the death of a slave. In LE 23–24, the illegal distrainer, a

creditor who makes an illegal seizure as payment for a debt, compensates

the owner for the death of his female slave by replacing her with two new

slaves, but if he seizes the wife or son of a commoner/dependent and they

die in his custody, he is executed. In LE, the penalty for the illegal distrainer

of a slave is equivalent to the penalty for stealing a slave (LE 49) – the owner

obtains two slaves in place of one.

Slaves are property, and this status shapes how their slaying is punished.

The second characteristic of cuneiform law is to recognize gradations among

those who are not slaves. LH makes a distinction between two ranks in the

nonslave class, the aw¯ılum, the free person, and the muˇsk¯enum, the commoner/

dependent.14 In LH 207–208, if a free person is killed unintentionally,

the penalty is thirty shekels. It is reduced to twenty shekels in the death of a

commoner/dependent:

207

If [a free man] dies from his beating, he shall swear [“I did not strike

him intentionally”]. If [the victim] is a member of the free class, he

shall pay 30 shekels of silver.

208

If [the victim] is a member of the client/common class, he shall pay

20 shekels of silver.

14The debate over the nature of the status of the muˇsk¯enum has been heated. See M. Stol,

“Muˇsk—enu,” RLA 8.492–493. For the sake of this study, the sole critical point is the recognition

that the muˇsk¯enum is of lower rank.

In the case where a miscarriage occurs, a compensatory death is mandated

in the death of a free woman, but the statute assesses a monetary penalty in

the death of a woman in the commoner/dependent class (LH 209–212):

209

If a free man strikes a woman of the free class and causes her to

miscarry her fetus, he shall pay 10 shekels of silver for her fetus.

210

If that woman dies, they shall kill his daughter.

211

If he causes a woman of the client/common class to miscarry her fetus

by the beating, he shall pay 5 shekels of silver.

212

If that woman dies, he shall pay 30 shekels of silver.

Monetary penalties are also assessed for nonlethal injuries to a commoner/

dependent, but physical punishment is mandated when the victim

is of the free class (LH 196–201). Even within the same rank, notice is

taken of whether the offender and victim are of differing or equal status (LH

202–203).15 It is clear, then, that social categories inform the assessment of

penalties.

Despite the strict recognition of social gradations, it is possible to speculate

that the categorization allowed for leniency in LH.16 According to LH

210 and 212, the vicarious death penalty is imposed if the victim is a woman

of the free class, but the death penalty for the killing of a woman of the

client/common class is excluded. The penalty imposed is thirty shekels of

silver, identical to the penalty imposed in LH 251 in which class gradations

are not recognized. In LH 208, the penalty for the death of a member of

the client/common class is equal to that imposed in the death of a slave in

LH 252.

In contrast to LH, the statutes in LE are far less consistent in distinguishing

between the free person and the commoner/dependent. LE 47A specifies

the penalty for killing a member of the free class in a brawl but does not

indicate the penalty for a commoner dependent:

47A

If a man in a brawl caused the death of a member of the aw¯ılu [free]

class, he shall weigh out 40 shekels of silver.

15See Roth, “Mesopotamian Legal Traditions and the Laws of Hammurabi,” 13–37.

16Reuven Yaron, “Enquire Now About Hammurabi, Ruler of Babylon,” Tijdschrift voor

Rechtsgeschiednis 59 (1991), 235–236.

LE 54, 56, and 58 provide the remedy for the death of a free person but not

for the commoner/dependent:

54

If an ox [was] a gorer and the ward [authorities] have had [it] made

known to its owner, but he did not guard his ox and it gored a man

and killed [him], the owner of the ox shall weigh out 40 shekels of

silver.

56

If a dog [was] vicious and the ward [authorities] have had [it] made

known to its owner, but he did not guard his dog and it bit a man and

caused [him] to die, the owner of the dog shall weigh out 40 shekels

of silver

58

If a wall was about to fall and the ward authorities have made it

known to the owner of the wall but he did not reinforce his wall and

the wall collapsed and killed a member of the aw¯ılu [free] class, it is

a case concerning life – it is a decree of the king.

Similar omissions occur in other statutes in LE that address other offenses.

LE 12–13 address the compensation to be paid if a person trespasses on a field

of a commoner/dependent but do not mention trespass on a field belonging

to a member of the free class. Similar lacunae appear in two statutes treating

the case of a slave woman giving away her child. That child, if given to a

free person, is always subject to seizure, even when the child becomes an

adult, according to LE 33. LE 34 mandates that if a slave woman belonging

to the palace gives her child to a muˇsk¯enum for rearing, that child must be

returned. The variables in these cases are too incongruous for an accurate

comparison to be made between LE 33 and 34. The parallel case to LE 33,

the case of a slave woman’s child having been given to a free person and now

grown up, would be a child given to a person not belonging to the free class

and now grown up, that is, either a muˇsk¯enum or another slave, but those

situations are ignored. The parallel case to LE 34, the case of a child of a

palace slave woman being given to a muˇsk¯enum, would be the case of a slave

woman of a palace giving her child to either a free person17 or another slave

for rearing, but that is not mentioned.18 Furthermore, it is unclear whether

the possibility of seizure in LE 33 correlates to forced return in LE 34.

17The difference between this case and LE 33 is that in LE 33, the child has become an adult.

18Since the parallel cases are not included, it must be asked whether omissions signify that the

offense in question would not be punished if done to a member of the omitted class. Yaron

argued that in LE, the free classes were not differentiated, except in those cases where they were

directly contrasted (The Laws of Eshnunna2, 138–139). Omissions in LE constitute a special

situation in which the logic of the entire composition is based on the presentation of maximal

variants. This issue was discussed in greater detail in the previous chapter.

In contrast to LH and LE, MAL is less consistent on the importance

of rank. MAL A 10 does not base the remedy for homicide in general on

gradations of social status.

A 10

[If either] a man or a woman enters [another man’s] house and kills

[either a man] or a woman, [they shall hand over] the killers [to the

head of the household]. If he chooses, he shall kill them, or if he

chooses to come to an accommodation, he shall take [their property].

And if there is [nothing of value to give from the house] of the killers,

either a son [or a daughter] . . .

However, in the case of a fatal assault on a pregnant woman, two statutes

provide contradictory distinctions. MAL A 21 mandates the remedy on the

basis of a woman’s status in the free class, while the penalties in MAL A

50–52 are based on the maternal status of the woman:

A 21

If a man strikes a woman of the a’¯ıilu class causing her to abort her

fetus and they prove the charges against him and find him guilty, he

shall pay 9,000 shekels of lead; they shall strike him 50 blows with

rods; he shall perform the king’s service for one month.

A 50

[If a man] strikes [another man’s wife causing her to abort her

fetus, . . . ] a man’s wife [ . . . ] and they shall treat him as he treated

her. He shall make full payment of a life for her fetus. And if that

woman dies, they shall kill that man; he shall make full payment of a

life for her fetus. And if there is no son of that woman’s husband and

his wife whom he struck aborted her fetus, they shall kill the assailant

for her fetus. If her fetus was a female, he shall make full payment of

a life only.

A 51

If a man strikes another man’s wife who does not raise a child causing

her to abort her fetus, it is a punishable offense. He shall give 7,200

shekels of lead.

A 52

If a man strikes a prostitute causing her to abort her fetus, they shall

assess him blow for blow. He shall make full payment of a life.

According to MAL A 50, if the pregnant woman has no son from a prior

pregnancy, the assailant is executed, except if the fetus was female. In that

case, the offender pays the appropriate compensation for a life. According

to MAL A 51, if the assailant causes a woman who has not adopted a child

to miscarry, a penalty of 7,200 shekels of lead is assessed. In the context of

statutes that base punishment on the maternal status of a woman, it might

be questioned whether an assault on a prostitute, that is, on no man’s wife,

would be subject to legal action. MAL A 52, however, makes the fatal assault

on a prostitute an offense for which compensation is required.

HL 17–18 take a different tact and base the penalty on the developmental

stage of the fetus:

HL 17

If anyone causes a free woman to miscarry, [if] it is in her tenth month,

he shall pay 10 shekels of silver; if it is her fifth month, he shall pay

5 shekels of silver. He shall look to his house for it.

Late version of 17

If anyone causes a free woman to miscarry, he shall pay 20 shekels of

silver.

HL 18

If anyone causes a female slave to miscarry, if it is her tenth month,

he shall pay 5 shekels of silver.

Late version of 18

If anyone causes a female slave to miscarry, he shall pay 10 shekels

of silver.

The length of pregnancy was considered to last ten months, counting the set

month of the year in which the infant was conceived as the first month. (The

nine months of pregnancy would end in the tenth calendrical month.) If the

miscarriage occurs in the tenth month, the penalty is doubled from what it

would be in the fifth month.

In the law collections, the status of the victim affects the penalty. The

slave’s status as property means that compensation for his death, whether

in kind or in money, is paid to his master. Other gradations in rank prompt

gradations in penalty.

The pecuniary penalties in the law collections are fixed amounts. No

regard is taken of the inevitable variations in an individual’s net worth – the

size of one’s estate or the success of one’s business.19 Group characteristics,

such as whether a person is a member of the free, muˇsk¯enum, or slave class,

are taken into consideration, while individual variables are ignored. Every

person had a standard “worth” based on social status and gender. Factors

such as the emotional suffering and social loss encountered by the victim’s

family are disregarded. (By contrast, it would appear, at least from the Neo-

Assyrian documents, ADD 321 and 164, and from the MAL, A 10, that in

Assyria the parties negotiated the amount to be paid with the assistance of

the crown – the amount is not fixed.)

19Hoffner, “On Homicide in Hittite Law,” 295.

As we review the penalties for homicide in cuneiform law, we realize

that the execution of the killer is not based on the principle of lex talionis.20

According to lex talionis, the penalty must be similar to the offense in the

aspects in which the original offense was wrong. It is a reversal of roles:

In the case of homicide, the original agent of harm, the killer, becomes the

recipient of the same action of the type, killing, that constituted the offense.

In cuneiform law, the victim’s loss is made good, but the penalty inflicted

on the transgressor is realized in many different ways, sometimes capital

punishment, sometimes monetary compensation, sometimes compensation

in kind. The offender does suffer a loss, but it is not the same as the loss

suffered by the victim. Social categories imposed their qualifications on the

law, and there is general inconsistency.

It is most important to recognize that although there are statutes on

unlawful death whose remedy is death, leading us to suppose that the penalty

is to be identical to the offense,21 these are purely coincidental. They are not

instances of lex talionis because they fall under the rubric of serious offenses

punished by death. Therefore, capital punishment for homicide is not an

example of lex talionis. The principle of lex talionis does not operate as

the foundational principle of the statutes on homicide in the cuneiform law

collections.

This does not mean that lex talionis, retaliation in kind, was not a principle

in cuneiform law. It was imposed on a false witness in LL 17 and LH 3:

LL 17

If a man, without grounds, accuses another man of a matter of which

he has no knowledge, and that man does not prove it, he shall bear

the penalty of the matter for which he made the accusation.

LH 3

If a man comes forward to give false testimony in a case but cannot

prove his accusation, if that case is a capital case [lit. “a case of life”],

that man shall be killed.

It was imposed on nonfatal bodily injuries when certain classes of society

were involved.

LH 196–201 can be compared to LE 42–43:

LE

42

If a man bites the nose of another man and cuts it off, he shall weigh

and deliver 60 shekels of silver; an eye, 60 shekels; a tooth, 30 shekels;

20As against, for example, Sick, who argues that the death penalty for the homicide provision

was a result of an imposition of lex talionis (Die To tung, 306).

21Herbert Petschow, “Neufunde zu keilschriftlichen Rechtssammlungen,” ZSS 85 (1968), 18,

n. 64.

an ear, 30 shekels; a slap on the cheek, he shall weigh and deliver 10

shekels of silver.

43

If a man should cut off the finger of another man, he shall weigh and

deliver 20 shekels of silver.

LH

196

If a free man should blind the eye of another man of the free class,

they shall blind his eye.

197

If he should break the bone of another free man, they shall break his

bone.

198

If he should blind the eye of a palace dependent/commoner, he shall

weigh and deliver 60 shekels of silver.

199

If he should blind the eye of a free man’s slave or break the bone of

a free man’s slave, he shall weigh and deliver one-half of [the slave’s]

value.

200

If a free man should knock out the tooth of another free man of his

own rank, they shall knock out his own tooth.

201

If he should knock out the tooth of a palace dependent/commoner,

he shall weigh and deliver 20 shekels of silver.

The imposition of the death penalty in particular cases of homicide is not

based on lex talionis, but as the penalty in severe cases:

LL e

If she dies, that male shall be killed.

LE 24

If he had no claim against him yet distrained the wife of a commoner/

dependent or the son of a commoner/dependent, detained the

distrainee in his house and caused him/her to die, it is a case of life;

the distrainer who distrained shall die.

LH 14

If a free man should kidnap the young child of another man, he shall

be killed.

LH 15

If a man should enable a palace slave or slave woman, a palace dependent’s

slave or slave woman to leave through the main city gate,

he shall be killed.

LH 210

If that woman dies, they shall kill his daughter.

LU 1

If a man commits a homicide, they shall kill that man.

LU 2

If a man acts lawlessly [?], they shall kill that man.

The death penalty was imposed when the offense was severe. Homicide was

just one of those offenses.

Although death was imposed as vicarious punishment in particularly

heinous cases, it was not a form of lex talionis. It is critical to recognize

that Mesopotamian society was organized by status, and when in a specific

case the damage is to be remedied in terms of the loss, the remedy has to be

in the same quality as that which was damaged. If the free man kills a free

man’s son while detaining him for distraint, his son is to be killed (LH 116).

If he strikes and kills a woman of the free class, his daughter is to be killed

(LH 210). If he builds an unsound structure and the building’s collapse kills

the son of the owner, his son is to be killed (LH 230). Putting the builder to

death for the loss of a minor would be a gross imbalance of justice: A minor

is equal only to another minor.22 This principle is adumbrated in LE 49 in

the penalty of paying for the death of a slave by providing two slaves in

return – the free person who killed the slave is not killed. The status of the

offender and the victim generates the penalty. Sometimes the penalty that

is imposed is death, and only sometimes is the death penalty a result of lex

talionis.

The principle of lex talionis can be used in a variety of ways. If we refer

to the law that gave the name to this principle, we see that lex talionis is

not meant as a concept of punishment but is entirely another matter. This

law is the second provision in Table VIII of the XII Tables, which reads,

Si membrum rup[s]it, ni cum eo pacit, talio esto, “If anyone has broken

another’s limb and does not come to an agreement with him, there shall

be retaliation in kind (talio).”23 Lex talionis is meant as a threat, not as a

22Finkelstein, The Ox That Gored, 34.

23The Latin text of the XII Tables is to be found in S. Riccobono, Fontes iuris romani anteiustiniani

(2d edition; vol. 1; Florence: Barbera, 1941). A translation and commentary on the

XII Tables is found in Allan Chester Johnson, Paul Robinson Coleman-Norton, and Frank Card

Bourne, Ancient Roman Statutes (The Corpus of Roman Law II; Austin: University of Texas

Press, 1961), 9–18.

principle of punishment.24 It is a way in Roman law of forcing the offender

to come to terms with the victim. For more minor injuries, a series of fixed

monetary penalties is prescribed in the XII Tables.

An intriguing term appears in a number of cuneiform texts. The term d¯ın

napiˇstim, literally “the punishment in a capital case,” appears in the Laws of

Eshnunna and in the Laws of Hammurapi and in some letters.25 Does this

term shed light on cases of homicide?

LE 24

If he had no claim against him yet distrained the wife of a commoner/

dependent or the son of a commoner/dependent, detained the

distrainee in his house and caused [him/her] to die, it is a capital case

[lit. a case of life]; the distrainer who distrained shall die.

LH 3

If a man comes forward to give false testimony in a case but cannot

prove his accusation, if that case is a capital case (lit. “a case of life”),

that man shall be killed.

A variation on the term appears in other statutes of LE:

LE 48

And for a case involving a fine of silver ranging from 20 shekels to

60 shekels, [the judges] shall determine the judgment against him. A

capital case is for the king only.

58

If a wall was about to fall and the ward authorities have made it

known to the owner of the wall but he did not reinforce his wall and

the wall collapsed and caused a member of the aw¯ılu [free] class to

die, it is a case concerning life – it is a decree of the king.

In the law collections, the term signifies a capital case for which the

penalty, it appears, is death, but it is understood differently in the letters.

24AlanWatson, Rome of the XII Tables: Persons and Property (Princeton: Princeton University

Press, 1975), 123. There are statutes in cuneiform law that appear to be applications of lex

talionis because they entail meticulous attention to the exactness of retribution, leading to

statutes resulting in punishments that may appear grotesque; see LH 209/210, MAL A 55.

However, the remedy in these provisions is not based on talio but on the status of the son or

daughter of a free person.

25The phrase appears in some other texts. ARM V 12:4 is too broken for analysis. (Georges

Dossin, Lettres [TCL 26; ARM V; Paris: Paul Geuthner, 1951], no. 12; Correspondance de

Iasma

˘

h-Addu [ARMT V; Paris: Imprimerie Nationale, 1952], no. 12). The phrase appears

in an incantation describing how the supplicant has infuriated his goddess, and among the

misdeeds he has committed, he has taken an oath in a capital case. (Cf. Reiner, Sˇurpu, 2.86,

15.) It is unclear, though, whether this particular transgression is more serious than the other

sins listed.

ARM VIII 1

1 ia-

˘

ha-at-ti-`ıl 2DUMU

˘

hi-il-la-lim 3 u` DUMU fa-li-tum 4 da-ma-q´ı-

ˇsu-nu i-da-mi-iq 5 li-mi-ni-ˇsu-nu i-li-mi-in 6 ˇsum-ma

˘

hi-il-la-lum abu-

sˇu 7 u` fa-li-tum um-ma-sˇu 8 a-na ma-r[i-sˇu-nu] ia-

˘

ha-at-ti-`ıl 9 u´ -ul

ma-ri-ni at-ta i-qa-bu-ma 10 i-na ´E u` e-nu-tim 11 i-ta-al-lu-u´ 12 sˇum-ma

ia-

˘

ha-at-ti-`ıl 13 a-na

˘

hi-il-la-lim a-bi-sˇu 14 u` fa-li-tum um-mi-sˇu 15 u´ -ul

a-bi at-ta 16 u` u´ -ul um-mi at-ti i-qa-bi-ma 17 u´ -ga-la-bu-sˇu-ma 18 a-na

KUG.BABBAR i-na-ad-di-nu-ˇsu 19 I

˘

hi-il-la-lum 20 u` fa-li-tum

rev.

21ma-ri ma-du-tim ma-li ir-[sˇu]-u´ !-ma 22 Iia-

˘

ha-at-ti-il-ma ap-lu-um

23 i-na ´E

˘

hi-il-la-lim a-bi-ˇsu 24 ˇsi-it-ti-in i-li-q´ı-ma 25 a

˘

h-

˘

hu-ˇsu s.

´e-

˘

heru-

tum 26 a-

˘

hu-um ki-ma i-za-az-<zu> 27 ba-q´ı-ir i-ba-qa-ru-ˇsu 28 asa-

ak dUTU di-tu´ r-me-er I dUTU-sˇi-dISˇKUR 29 u` ia-a´ s-ma-a

˘

h-dI ˇSKUR

i-ku-ul 30 u` 3 1/3MA.NA KUG.BABBAR di-in na-p´ı-isˇ-tim 31 i-na-addi-[

i]n 32 IGI u´ -s.ur-a-wa-su´ 33 IGI dNANNA-`ıl 34 IGI DINGIR-sˇu-abu-

sˇu 35 IGI u´ -ma-an-ni-su-ta 36 IGI ik-sˇu-ud-ap-pa-sˇu 37 IGI i-din-`ı-l´ı

ku-um-rum 38 IGI ia-ar-i-ip-`ıl ku-um-rum 39 IGI ak-ka-ba-ni ku-umrum

40 IGI ˇsu-dnu-nu DUMU Ida-gan-nu-pa-ra-ia 41 IGI i-din-dnunu

DUMU Ida-gan-ma-lik 42 IGI dda-gan-aˇs-ra-ia 43DUMU Ida-ganga-

am-li 44 IGI ˇsu-INANNA DUMU GISSU-l´ı-INANNA ku-um-rum

45 IGI

˘

ha-da-ta-an 46DUMU la-ri-im-lu-u´ 47 IGI wa-ri-ki-ma 48 IGI

fan-nu-aˇs-ri 49DUMU.MUNUS GISSU-l´ı-ak-ka 50 IGI s.

a-pur-s `a-lim

lu´MA´ .LA

˘ H

4

51 IGI za-ki-ri-im 52 IGI a-

˘

hi-im DUBSAR 53 ITU

˘

hi-biir-

tim UD 28 KAM 54 li-mu a` s-qu´ -du-um

1–5Yahatti-el is the son of Hillalum and Alitum. He shall rejoice in

their joys and commiserate in their miseries. 6–11 Should Hillalum, his

father, and Alitum, his mother, say to their son Yahatti-el: “You are

not our son,” they shall forfeit house and belongings. 12–18 Should

Yahatti-el say to Hillalum, his father, and Alitum, his mother: “You

are not my father, you are not my mother,” they shall have him

shaved and shall sell him for money. 19–26 As for Hillalum and Alitum,

regardless of how many sons they have, Yahatti-el is primary

heir, and he shall take a double share of the estate of Hillalum, his father.

His younger brothers shall divide the remainder in equal shares.

27–31 Whichever [among the brothers] shall enter a claim against him

will [be considered to] have infringed on a taboo of Shamash, Itur-

Mer, Shamshi-Adad, and Yasmah-Adad, and shall pay three and onethird

minas of silver, the penalty in a capital case. 32–52Witnesses.

53–54 Month of Hibirtum, 28th day, eponym of Asqudum.

If the brothers contest the status of the adopted son as the eldest, especially

in regard to inheritance, they will pay three and one-third minas of

silver, which is identified as d¯ın napiˇstim, the penalty in a capital case. A set

amount is recognized as the compensation in a capital case, but the particular

circumstance in which it is paid is not a capital case. The penalty for

contesting a legal transaction in other tablets, taking this volume of ARM

as an example, is one mina in ARM VII 5.9 and ten minas in ARM VII 8.9,

11.28, 12.7. The expression d¯ın napiˇstim, employed mainly in LE, is taken to

mean the imposition of the death penalty without any mitigation. However,

here it refers to a financial penalty, and it is in fact a moderation of the more

common amount in a penalty clause:26

ARM XIII 145

1 [a-n]a be-[l´ı-ia] 2 q´ı-bi-ma 3 um-ma ia-wi-[AN] 4 `IR-ka-a-ma

5DUMU.MEˇS ˇsi-ip-ri-im ` u l ´ u ˇSU.GI 6 ˇsa ia-ar-ki-ba-dI ˇSKUR a-na-s.

er[

i-ia] 7 il-li-ku-nim-ma ki-a-am iq-bu-nim [um-ma-mi] 8 it-ti-ka u´ -ul

na-ak-ra-ku 9 u` a-na a-wa-at bu-nu-ma-dISˇKUR u´ -ul [a-qu´ -ul] 10 u` ana-

ku ki-a-am a-pu-ul-sˇu-nu-[t]i 11 um-ma a-na-ku-ma na-ak-ra-at u`

sa-al-ma-at 12 ma-an-nu-um i-di-ka la wa-ta-ar 13 na-ka-ar-ka uˇs-teed-

di 14 [at-t]u-nu-[m]a na-ka-ar be-l´ı-ia zi-im-ri-li-im 15 [it-ti-ia-m]a

na-ak-[ra-a]t 16 [u` a-na-k]u I`R be-l´ı-i[a zi-im-ri-li-im] 17 [x x ad-b]ubu-

ˇsu-nu-t[i-ma] 18 [ar-

˘

hi-i]sˇ a-wa-su´ -nu ki-a-a[m isˇ-ku-nu]

rev.

19 [um]-ma-a-mi ˇsum-ma bu-nu-ma-[dI ˇSKUR] 20 di-in na-p´ı-iˇs-tam iddi-[

in] 21 u` na-p´ı-isˇ-tam um-ta-al-[la] 22 ta-s[a-l]i-[im-ma an]-ni-tam

iq-[bu-nim] 23 u` ki-a-am [a-pu-ul-sˇu]-nu-ti 24 um-ma a-na-[ku-ma ziim]-

ri-li-im be-l´ı 25 i-na a-lim t[a-al-

˘

h]i-yi-im wa-ˇsi-ib 26 ba-lum bel

´ı-ia mi-im-ma e-pe´-sˇa-am 27 u´ -ul <e>-li-im i-na-an-na be-l´ı a-watam

28 li-na-t.`ı-la-am-ma sˇa [qa-be´-e] 29 be-l´ı-ia lu-p[u-u´ sˇ asˇ-sˇum x x

x x] 30 an-ni-im ba-[lum be-l´ı-ia mi-im-ma] 31 e-pe´-sˇa-[am u´ -ul e-lii]

. . . 32_ [ma]-a-tum ˇsu-tam-ma-at 33_ [u` ] wa-ar-ki be-l´ı-ia 34_ i-la-k[u]

35_x x

1–4To my lord, read: Thus says Iawi-ila your servant. 5–9 The messengers

and elders of Iarkiba-Addu have come to me and have said:

“We are not hostile to you. Do not pay attention to the matter of

Bunuma-addu.” 10–16 I responded to them thus: “You are (both) hostile

and conciliatory. Who knows you? It is too much. You have made

known your hostility. You are an enemy of my lord Zimri-Lim, and

with me you are hostile, and I am a servant of Zimri-Lim.” 17–22 Thus

I said to them. Quickly they decided thus: “If Bunuma-Adda has been

accused in a capital case and has paid [the value of] a life, then he

will be reconciled.” 22–27 They said thus to me, and I responded to

them: “Zimri-Lim is my lord, who resides in Talhiyum. Without the

26Georges Boyer, Textes juridiques et administratifs (TCL 29; ARM VIII; Paris: Paul Geuthner,

1957), 168.

authorization of my lord, I cannot do anything.” 27–31Now, may my

lord look favorably upon the matter which I have done according

to my lord’s order. . . .Without my lord’s authorization, I cannot do

anything. 32_–34_

. . .

Here again, d¯ın napiˇstim signifies a pecuniary penalty. It is not only these

letters from Mari that assume that the penalty is a fine. In the legal records

from Mesopotamia as well, the penalty for a homicide is financial.27

We have come across many different penalties for homicide. Recourse

to compensation in place of capital punishment has inspired theories on the

historical development of the treatment of homicide in the ancient Near East.

G. R. Driver and John C. Miles suggest a historical process in which a blood

feud ensued when a member of one family injured another: The community,

which could be affected by the loss of fighting men, limited the vendetta

by ending it when the killer himself was killed or by providing an alternate

remedy in compensation.28 This principle was then extended to limit liability

to the actual injury incurred. Eventually, compensation became the preferred

penalty.29

Driver and Miles base their explanation upon one of the most influential

theories of legal evolution, the self-help model developed in the late eighteenth

and the nineteenth centuries.30 This theory attempted to answer the

question of whether there were evolutionary patterns in law, by which societies

move from one definable stage with particular institutions to another

definable stage with particular institutions. The self-help model presumed

that in the earliest period of human existence, violence was prevalent but

not chaotic. Violence was organized by a rule-bound system of vengeance.

The earliest states were established in an effort not to eliminate this violence

but to supervise and institutionalize it. There were four stages postulated in

27E.g., NSG 41, Wiseman Alalakh 17, BBSt 9, ADD 618, ADD 321, ADD 164, ADD 806,

PPA 95.

28Driver and Miles, The Babylonian Laws, 1.501–502.

29Marian San Nicolo` , “Rechtsgeschichtliches zum Gesetze des Bilalama von Esˇnunna,” Or 18

(1949), 261; Goetze, The Laws of Eshnunna, 261.

30J. D. Michaelis, one of the most prominent proponents of biblical criticism in the eighteenth

century, was among the first to argue against the prevailing theory, the social contract model,

and for a rule-bound system of vengeance. The self-help model received new impetus in the

nineteenth century when it was championed by G. W. F. Hegel in Philosophy of Right (trans.

T. M. Knox; Oxford: Oxford University Press, 1952 [1821]), and by the preeminent legal

historian Rudolf von Jhering in Geist des romischen Rechts auf den verschiedenen Stufen seiner

Entwicklung (Aalen: Scientia Verlag, 1968 [1898]). The most widely read proponent of this

model today is Max Weber, Economy and Society: An Outline of Interpretive Sociology, ed.

Guenther Roth and Claus Wittich, trans. Ephraim Fischoff (Berkeley: University of California

Press, 1978 [1922]). A recent analysis of the self-help model from the viewpoint of Law and

Economics was written by James Q. Whitman, “At the Origins of Law and the State: Supervision

of Violence, Mutilation of Bodies, or Setting of Prices,” Chicago-Kent Law Review 71 (1995),

41–84.

this process. In the first stage, the “state of nature,” kin groups or individuals

exacted vengeance when injured by other kin groups or individuals in the

form of talionic reparations, “an eye for an eye, a tooth for a tooth.” In the

second stage, the early state supervised the existing system of vendetta by

forcing the parties to have recourse to the state for a formal hearing in order

to exact talionic vengeance. In the third stage, the early state assumed the

role of enforcement and took the responsibility from the injured party to

exact vengeance. Only the state could legitimately have recourse to violence.

Finally, the state eliminated violence by substituting monetary damages for

talionic reparations.

However, the discovery of early law collections that prescribe pecuniary

penalties for injury and homicide has inspired scholars to reverse the historical

process: They argue that the law developed from compensation to talionic

punishment. According to A. S. Diamond, this development was a sociological

advance as certain wrongs were no longer considered private: They were

no longer civil wrongs covered by civil law but public wrongs covered by

criminal law, because the state had advanced to a level of complexity that

could police these occurrences.31 The difficulty with this proposal is that pecuniary

punishment is found in later law collections as well as in earlier ones:

The explanation that the law collections preserving monetary compensation

originated in less advanced societies is strained.

J. J. Finkelstein attempts to salvage this theory by proposing that corporal

punishment in terms of lex talionis in the Laws of Hammurapi reflected an

innovation in jurisprudence, not social development.32 What was formerly

covered by civil law, a legal realm in which the penalties are purely pecuniary,

was subsequently covered for the injury of a member of the upper class

by criminal law, in which corporal sanctions can be imposed. According to

Finkelstein, this was clearly an innovation, when protection was granted

to the upper class. Others, of inferior status, had to be content with compensation.

However, it appears to me that it is difficult to understand why

this innovation was not sociologically determined. More importantly, there

may not have been a sharp distinction between civil and criminal law, and

if corporal punishment is the characteristic of criminal law – Finkelstein’s

definition of criminal law – then it was already introduced in the Laws of

Ur-Nammu (LU 1, 2, 6, 7). LE makes attempted theft part of criminal law:

In LL 9 the penalty is a fine; in LE 12–13 the penalty is a fine if attempted

during the day and death if attempted during the night; in LH 21 the penalty

is death. In general, in cuneiform law a financial penalty is the remedy for

theft (LL 9, 10; SLHF iii 13–15; MAL A 5, C 5, 8; HL 63–70, 93–97, 108,

31A. S. Diamond, “An Eye for an Eye,” Iraq 19 (1957), 51–55; Diamond, Primitive Law Past

and Present (London: Methuen & Co., 1971).

32Finkelstein, “Ammis.aduqa’s Edict and the Babylonian ‘Law Codes,’” 96–99, and The Ox

That Gored, 59, n. 13.

110, 119–143), except for LH, where death is the punishment (LH 6, 7, 8,

9, 10). LH makes death the punishment for anyone bringing a false charge

that necessitates a trial by ordeal for the accused (LU 13–14; LH 2). LE 28

mandates death for the wife caught in flagrante delicto, whereas LH 129

allows the husband to forgo the death penalty. Harboring a fugitive slave

results in a fine in LL 12, whereas the same act results in execution in LH

16. The imposition of the death penalty is a recurring refrain of the Laws

of Hammurapi (1–3, 6–11, 14–16, 19, 21–22, 25–26, 33–34, bb, 108–110,

116, 129–130, 133b, 143, 153, 155, 157, 210, 229–231). Corporal and

capital punishment are found in law collections both early and late.

In sum, lex talionis is a flexible concept. In biblical law, it is used as a

principle expressing equivalence. The penalty must be equivalent to the harm

inflicted. In the case of a human death, the offender must be killed, and in the

case of an animal death, the animal victim must be replaced. The penalty for

homicide in cuneiform law is death, but it is not an expression of lex talionis.

The death penalty is the penalty for serious offenses. The concern manifest in

cuneiform law is on the fixing of the status of the victim in certain categories

and how that status affects the punishment. Lex talionis was a principle in

cuneiform law for cases of false witness or nonfatal bodily injuries. In early

Roman law, lex talionis is not a principle of punishment but a threat to force

the offender to come to settle with the victim.

Lex talionis in biblical law restricts the punishment to the offender himself.

Lex talonis makes rich and poor equal in biblical law.33 More than that,

status, with the exception of the slave, is simply not a factor in biblical law.

The question is, therefore, whether lex talionis is a manifestation of

Israelite culture other than the fact that it is found in ancient Israel. In order

to answer this question, we must compare this penalty to other penalties.

The principle of the penalty for intentional homicide is based on the reversal

of roles: The original agent of harm becomes the recipient of the same

action of the type that constituted the offense. Therefore, the appropriate

punishment is execution: The killer is subject to being killed. This concept of

equivalence appears to be at work with regard to stealing a sheep: Just as the

thief has taken a particular type of animal away from its owner, a particular

type of animal is demanded from the thief. He does not simply return the

stolen animal but suffers a loss in the same “coinage,” sheep.

What is seen as equivalent depends on the culture. A particular human

being was not seen as fungible in the way a particular animal was viewed. In

cuneifom law, human life was considered fungible in pecuniary terms. This

was not valid in Israelite culture, at least according to what is presented as

legitimate in the Hebrew Bible. However, what is striking about the law in

Num 35:31–32 is its insistence that a monetary indemnity should not be

accepted in any case, whether for intentional or accidental homicide. This

33Paul, Studies in the Book of the Covenant, 40, 76–77.

stipulation implies that compensation was accepted in practice, albeit not

legal according to this statute.