Talion

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TALION

TALION , a concept of punishment whereby the prescribed penalty is identical with, or equivalent to, the offense. Identical (or "true") talions are death for homicide ("Whosoever sheddeth man's blood, by man shall his blood be shed": Gen. 9:6), wounding for wounding ("an eye for an eye": Ex. 21:23–25; Lev. 24:19–20), and doing to the false witness "as he had purposed to do unto his fellow" (Deut. 19:19). Equivalent talions conform to some feature characteristic of the offense, but not to its essence or degree: the hand that sinned shall be cut off (Deut. 25:12) – not a hand for a hand, but the hand for what it had done. In the case of the adulteress, it is that part of her body with which she is suspected of having sinned that will be visited with divine punishment if she is guilty (Num. 5:21 as interpreted in Sot. 8b–9a, and see *Adultery). (For further biblical equivalent punishments see Ex. 32:20; Judg. 1:7; ii Sam. 4:12; ii Kings 9:26; Dan. 6:25.) While most identical talions were abolished by talmudic law (see below), equivalent talions survived through talmudic times (cf. Sanh. 58b; Nid. 13b) into the Middle Ages (cf. Rosh, Resp. 17:8 and 18:17; Zikhron Yehudah no. 58; et al.), and traces can even be found in modern law (e.g., the confiscation, mostly as an additional punishment, of firearms, vehicles, or other objects by means of which an offense was committed, or of smuggled goods; or the suspension of trading or driving licenses for trading or driving offenses).

True talionic punishments were undoubtedly practiced in biblical and post-biblical times. To retaliate measure for measure is God's own way of meting out justice (cf. Isa. 3:11; Jer. 17:10; 50:15; Ezek. 7:8; Obad. 15; et al.), and is defended by Philo as the only just method of punishment (Spec. 3:181–2). The account of the talion in Josephus (Ant. 4:280) supports the theory that, as in ancient Rome (Tabula 8:2), the victim had the choice of either accepting monetary compensation or insisting on talion (cf. Ex. 21:30 for an analogous case). Even in the talmudic discussion on the talion, one prominent dissenter consistently maintained that "an eye for an eye" meant the actual physical extraction of the offender's eye for that of the victim (bk 83b–84a). The majority, however, settled the law to the effect that talion for wounding was virtually abolished and replaced by the payment of damages (bk 8:1), primarily because the justice of the talion is more apparent than real: after all, one man's eye may be larger, smaller, sharper, or weaker than another's, and by taking one for the other, you take something equal in name only, but not in substance. Not only is the ratio of talion thus frustrated, but the biblical injunction that there should be one standard of law for all, would also be violated (Lev. 24:22). Also if a blind man takes another's eye, what kind of eye could be taken from him? or a cripple without legs who did injury to another's leg, what injury can be done to his? Nor can an eye or any other organ be extracted from a living man's body without causing further incidental injury, such as making him lose vast amounts of blood or even endangering his life; "and the Torah said, an eye for an eye, and not an eye and a soul for an eye" (bk 83b–84a). The very risk, unavoidable as it is, of exceeding the prescribed measure, is enough to render talion indefensible and impracticable (Saadiah Gaon, quoted by Ibn Ezra in his commentary on Ex. 21:24).

The monetary compensation replacing talion was not wholly in the nature of civil damages, however, but had a distinctly punitive element. This is clear from the rule that the penalty for inflicting injuries not resulting in pecuniary damage was *flogging (Ket. 32b; Sanh. 85a; Mak. 9a). The only reason why flogging could not be administered where any damages were payable was that two sanctions could never be imposed for any one offense (Ket. 37a; Mak. 13b; et al.).

While talionic practice was effectively outlawed, the talionic principle, as one of natural justice, was reaffirmed in the Talmud: the measure by which a man measures is the measure by which he will be measured (Sot. 1:7; Tosef. Sot. 3:1 as to punishments and 4:1 as to rewards). The famous precept of Hillel's, said to embody the whole of the Torah, that you should not do to another what you would not like to have done to you (Shab. 31a) is derived from the same principle.

bibliography:

E. Goitein, Das Vergeltungsprincip im biblischen und talmudischen Strafrecht (1893); D.W. Amram, in: jqr, 2 (1911/12), 191–211; J. Horovitz, in: Festschrift…Hermann Cohen (1912), 609–58; J. Weismann, in: Festschrift…Adolf Wach (1913), 100–99; E. Merz, Die Blutrache bei den Israeliten (1916); S. Kaatz, in: Jeschurun, 13 (1926), 43–50 (Germ.); J. Norden, Auge um Auge, Zahn um Zahn (1916); J.K. Miklisanski, in: jbl, 66 (1947), 295–303; et, 12 (1967), 693–5. add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:185, 331ff.; ibid, Jewish Law (1994), 1:207, 397ff.; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest) (1986), 2:322; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 223.