Lex Talionis Is Indefensible

by | Jan 8, 2006

My buddy, DK, has penned an eloquent treatise against capital punishment for the Salt Lake Tribune. Here’s an excerpt:

Proponents of capital punishment often argue that, on the basis of retribution, punishment and offense ought to be connected. In the case of murder, death is appropriate.

This principle, in legalese, is Lex Talionis, and dates back to the Babylonian Code of Hammurabi, restated in the Old Testament as “If any harm follows, then you shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe.”

Aristotle and Aquinas used it as the basis for their commentaries on punishment. Dante based much of his depiction of the suffering of sinners in hell on the premise that divine penalty is determined by the sin committed. So, in the Inferno, gluttons are masticated, instigators of civil strife are dismembered, and so forth.

But, in order to be logically consistent, defenders of Lex Talionis must argue that rapists ought to be raped and torturers ought to be tortured. Can you imagine anything more ludicrous and reprehensible than the Department of Corrections hiring officers to rape rapists and drub wife-beaters? Lex Talionis is indefensible.

I’ve always thought the banishment concept practiced by Native Americans was a good answer. Maybe we could send our most vile to a distant island where they fend for themselves, or perish.