Lex Talionis:

I. Introduction

Lex talionis, also known as the law of retribution (“tooth for a tooth, eye for an eye”), is one of the world’s most recognizable legal concepts. Aside from its independent importance in the study of ancient legal development, it has provided an important theoretical and historical justification for the retributivist account of criminal law. Although some form of it has appeared in civilizations and cultures throughout the world, lex talionis is identified most closely with the laws and customs of the ancient Near East and the Abrahamic faiths of Judaism, Christianity and Islam.

Today, lex talionis no longer plays a prominent role in Western law, as mutilating punishments have disappeared and other philosophical justifications for retribution in the criminal law have been formulated.[1] Lex talionis is far from a mere historical or religious object of curiosity, however. The belief that the law of retribution is an immutable religious command which must be applied literally is one that occurs across religious boundaries and is especially prominent in Islam. Efforts to curb capital punishment and amputation, or even specific methods such as stoning, have frequently run up against the shoals of religious objection. Islamic political and religious scholars who advocate the rigid enforcement of these aspects of shari’a law often express their justification in religious terms.[2]

Therefore, it would be illuminating to accurately outline the historical development of lex talionis within the specific social and temporal context of the distinct societies which both adopted and refined it.In particular, what are the scriptural bases of the law of retribution? Was it a novel concept, or did it build upon existing norms and customs?Did it emerge in each faith independently or as a result of cultural, religious and commercial interactions? Attempting to answer these questions should help furnish a richer understanding of the contemporary controversy over the death penalty and other punishments in the Islamic world. This examination into the roots of lex talionis will begin with mankind’s first human settlements in the Mesopotamia, continue with the Biblical law of Judaism and Christianity, and end with the consolidation of Islamic law in the decades after Mohammad’s death...

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