Wednesday, January 16, 2013

Lex Talionis

Justice is blind

Lex Talionis is Latin for the legal concept of mirror punishment. It is based on the idea that a person who has injured another person is hurt to a similar degree, that the punishment should be similar in intensity and kind to the offense of the wrongdoer. The more common way to think of it is “an eye for an eye” or “a tooth for a tooth.

The earliest known use of this idea comes from Hammurabi where if a person caused the death of another person, the killer would be put to death. This allowed legal codes to begin with very simple ideas of justice, understandable by all. A straight forward way to standardize justice.

As legal systems evolved, this simple idea led to more complex forms of justice. The Hebrew code of law slowly transferred the retribution from a physical one to a monetary one; the punishment of some crimes came to have a cost in goods instead of in kind.

Roman justice was still brutal

By the time of Roman law, the Lex Talionis idea had been largely abandoned for non-physical crimes and specific penalties for crimes had been codified that seemed “more fair” to the culture involved.

Lex Talionis is still practiced today in some cultures, although it is quickly diminishing as an alternative for punishment. Still it is not uncommon after a terrible crime to hear citizens demand “an eye for an eye”.

What purpose is served by Lex Talionis upon the criminal? What is the end we seek when a crime has been committed? I would challenge the assumption that Lex Talionis is a valid basis for justice.

There are many reasons we seek justice. Some victims desire revenge or payback. Governments wish to deter crime in order to keep a safe society. Many people seek repayment for the harm caused to make it right. Some desire only a public denunciation; showing the world that bad things were done.

A guillotine from the
 Reign of Terror
Revenge justice, sometimes known as retribution often comes from the anger and pain of the victim. Like in the famous movie “The Princess Bride” we wish to say “You killed my father, prepare to die.

Revenge justice has several problems. It requires a level of violence that is not permitted by the society in the first place, giving sanction to a crime being met with another crime. Revenge justice can lead to a spiral of violence where one act triggers another and another. As Mahatma Gandhi said  "An-eye-for-an-eye-for-an-eye-for-an-eye ... ends in making everybody blind."  Often the satisfaction of revenge is followed by the remorse of doing violence as it reduces the victim to the level of the criminal.  

Using revenge to punishing a child who broke my front window carelessly playing baseball would mean I advocate breaking his family's window as revenge. The father of the child would not like having his window broken and may well break another window of mine. My wife could respond and on and on, only the glazier being satisfied with the outcomes.

Revenge punishments have a tendency to degrade the society imposing them. Constant circles of violence make a culture gradually more brutal. It is the hallmark of civilized modern society that we do not allow the victim to take punishment upon the criminal. Lynchings and posse justice are examples of how we have moved away from revenge as a means to govern ourselves.

Deterrence justice is the credible threat of punishment might lead people to make different choices. Deterring or preventing a crime has the assumptions that specific punishments imposed on offenders will stop the would be criminal from acting badly.

Modern Iranian justice
Research has shown that increasing the severity of a punishment does not have much effect on crime. Killing a murderer does not stop other murders as we would suppose. Historical evidence that this method does not stop murder is quite good.

What does work to prevent criminal acts is the certainty of punishment. This idea works against our intuition, but never the less is real. Potential criminals think themselves more able than the law enforcers. Bad people think they can “get away with it” and are not stopped by potential harsh punishments like “an eye for an eye”. When, however, it is certain that some punishment will come, even if not severe, deterrence works. If a criminal is fairly certain they will be caught, then they do not do the crime.

Justice of cookie jar
A child who wants a cookie and knows that the cookie jar is forbidden will often take the cookie despite the potential for punishment if they believe they may not be caught. If however they know mom is watching they will not get anywhere near the cookie jar. It is not even necessary to spank the child to have this certainty of punishment effect. Simple knowledge of taking away a favorite toy or loss of privileges is sufficient for deterrence as long as the child knows there is a high probability of being found out.

The ultimate challenge of all justice is to minimize the amount of crime. The less crime, the fewer victims, the better the society. The emotions of the moment are a bad means to achieve that goal of justice. We must strive to build systems that make the punishment swift and certain, but we should not demean ourselves by sinking to the level of visiting a crime on the criminal.

No comments:

Post a Comment