“Vengeance As Justice: Passages I Highlighted in My Copy of Eye for an Eye”, Tanner Greer2018-01-26 (crime, law, ethics)⁠:

These type of questions naturally lead to the topic of this book: lex talionis, the law of the talion, the principle of an eye for an eye, of justice through vengeance, retaliation sanctioned by culture and law. This understanding of justice is what propels the Icelandic sagas. But it wasn’t just a Viking tick. “Eye for an eye” was standard practice just about everywhere a few thousand years ago, from the shores of Germainia and the fields of the Greek polis to the warring tribes of Canaan and the even more distant lands of the Kurus and the Zhou. We view this understanding of justice as backward and crude. We say things like “an eye for an eye makes the whole world blind.” Miller aims to convince us otherwise. We have a lot to learn from these talionic cultures, he argues, and our world could be made a more just place if we could humble ourselves enough to learn from them.

I am not going to provide a precis of Miller’s argument here. Like past editions of ‘Passages I Highlighted’ (see here) I will reserve myself to quoting the passages of this book I found most interesting. But to really give you a sense for Miller’s argument, I think the best thing I can do is quote first from another one of his books, one that focuses specifically on Icelandic society. He begins that book by quoting a passage from an obscure saga. In only a paragraph, the saga lays out what lex talionis looked like in real life:

Some Norwegian merchants chopped off Skæring’s hand. Gudmund was given self-judgment in the injury case. Haf Brandsson [Gudmund’s second cousin] and Gudmund together adjudged compensation in the amount of thirty hundreds, which was to be paid over immediately. Gudmund then rode away from the ship. But the Norwegians confronted Haf, who had remained behind; they thought the judgment had been too steep and they asked him to do one of two things: either reduce the award or swear an oath. Haf refused to do either.

Some people rode after Gudmund and told him what had happened. He turned back immediately and asked Haf what was going on. Haf told him where matters stood. Gudmund said, “Swear the oath, Haf, or else I will do it, but then they will have to pay sixty hundreds. The oath of either one of us will have the same price as Skæring’s hand.”

The Norwegians refused the offer. “Then I shall make you another proposal”, said Gudmund. “I will pay Skæring the thirty hundreds that you were judged to pay, but I shall choose one man from amongst you who seems to me of equivalent standing with Skæring and chop off his hand. You may then compensate that man’s hand as cheaply as you wish.”

This did not appeal to the Norwegians and they decided to pay the original award immediately. Gudmund took Skæring with him when they left the ship. (G.dýri 26:212)¹

Iceland was a country without a state. They had laws but no government to enforce them. If you were wronged, the responsibility to right the wrong rested with you and your kin. To prevent retaliatory feuds the Icelanders would often give the wronged party a chance to stand in judgement and mete out a punishment to pay for their mistakes and restore balance between the two groups. The saga passage you’ve just read is an excellent example of how the system worked. Miller’s comments on it are worth pondering:

By the time the saga writer focuses attention on this incident it is not the hand that is the subject of the dispute but the legitimacy and justice of Gudmund’s judgment. The Norwegians think the award excessive, and not without reason. More than a few men’s lives at this time were compensated for with thirty hundreds or less. Gudmund, however, is able to justify astutely his over-reaching by giving these men of the market a lesson on the contingency of value and values. To the Norwegians the award should reflect the price of a middling Icelandic hand. Gudmund forces them to conceive of the award in a different way: it is not the price of buying Skæring’s hand, but the price of preserving a Norwegian hand. By introducing the prospect of one of their hands to balance against Skæring’s, he is able to remind the Norwegians that the thirty hundreds they must pay purchases more than Skæring’s hand; it also buys off vengeance in kind. He is also able to force them to take into account the costs of personalizing the injury. Most people, he bets, are willing to pay more to save their own hands than they would be willing to pay to take someone else’s. The justice of Gudmund’s award thus depends on a redefinition of its importance. Rather than buying Skæring’s hand, the Norwegians are preserving their own, and the price, they now feel, is well worth paying. Fellow feeling thus comes not in the form of imagining Skæring’s anguish and pain as Skæring’s, but in imagining the pain as their own.²

This is the logic of lex talionis. This is why “an eye for an eye” did not in fact make the whole world go blind. The principle of an eye for an eye, as Miller sees it, is “the more ancient and deeper notion that justice is a matter of restoring balance, achieving equity, determining equivalence, making reparations… getting back to zero, to even.”³ Trading eyes for eyes is not so much about indiscriminate, unthinking violence as it is carefully calculated attempts to match punishment to crime. Talionic justice is a system built on deterrence—not only deterring criminals from committing crimes, but deterring vengeance seekers from exacting too heavy a price in retaliation for crimes committed against them.