Lex Talionis
![handle is hein.journals/arz34 and id is 37 raw text is: LEX TALIONIS
Jeremy Waldron*
The approach to punishment known as lex talionis (LT) - an eye for
an eye, a tooth for a tooth - is (fortunately) not as silly as it sounds. Though
the principle retains its attraction for defenders of capital punishment (a life
for a life), people think they can discredit it almost immediately by asking
What penalty is to be imposed on the rapist, according to this principle?
Amidst the general hilarity that follows, the speaker is able to put LT quietly to
one side and move on, as he thinks, to some more plausible version of retribu-
tivism.1
In this Essay, I shall argue five things. First, since LT is a principle
about what counts as an appropriate punishment, it is compatible with a vari-
ety of theories about the point or justification of punishment, including utilitar-
ian theories. In Section I, I shall sketch out a couple of these. Second, LT
cannot be thought to require that the very same action that constituted the
offense should be visited as punishment upon the offender. Rather, the
requirement must be that the act of punishment be similar to the offense in
certain respects. Which respects these should be is a matter of normative
argument.
On the basis of those two general claims, I shall argue for the following
propositions: Third, a defense of LT (even for murderers) is consistent with a
rejection of capital punishment in cases of homicide. Fourth, the operation of
the principle need not be confined to those cases where direct harm, suffering
or loss has been caused to a particular assignable individual. It can be applied
also to offenses like perjury, tax evasion and blackmail. Fifth, there is no
incompatibility between the stem dictates of LT and the more humane doc-
trine that punishment should be adjusted to reflect the degree of the offender's
responsibility for his crime.
Now the third, fourth and fifth positions look quite implausible, if only
because they contradict our familiar image of the advantages and disadvan-
* Professor of Law, Jurisprudence and Social Policy Program, School of Law (Boalt
Hall), University of California, Berkeley. B.A. 1974, LL.B. 1978, University of Otago, New
Zealand; M.A. 1980, D. Phil. 1986, University of Oxford.
The main argument in Section II of this paper developed out of a conversation with Heidi
Hurd, Bruce Mann, Michael Moore and Elizabeth Warren. I am grateful to them for stimulating
the argument, and also to Henry Shue for helping me develop it. The bulk of the paper was
drafted under the auspices of the Program on Ethics and Public Life at Cornell University; I am
grateful to the Program and its Director for support and assistance.
1. For example, this is the approach taken in Hugo A. Bedau, Retributivism and the
Theory of Punishment, 75 J. PHIL. 601; 611 (1978). HUGO A. BEDAU, DEATH Is DIFFERENT
262-63 n.61 (1987) [hereinafter DEATH Is DIFFERENT], provides a list of recent retributivist
theories and claims that all but a few of them reject lex talionis out of hand.](ViewImageLocal?handle=hein.journals/arz34&div=9&collection=journals&method=preview&ext=.png&size=3)
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Lex Talionis
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