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Sj Talion 11 Nov 2019 King’s Research Portal Link to publication record in King's Research Portal Citation for published version (APA): Jacobs, S. (Accepted/In press). Crime and Punishment: The Tallionic Formulation and Its Calibrations. In C. Crouch (Ed.), The Cambridge Companion to the Hebrew Bible and Ethics (First ed.). Cambridge: Cambridge University Press.. Citing this paper Please note that where the full-text provided on King's Research Portal is the Author Accepted Manuscript or Post-Print version this may differ from the final Published version. If citing, it is advised that you check and use the publisher's definitive version for pagination, volume/issue, and date of publication details. And where the final published version is provided on the Research Portal, if citing you are again advised to check the publisher's website for any subsequent corrections. 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Oct. 2021 Crime and Punishment: The Talionic Principle and Its Calibrations Sandra Jacobs This essay will explore the pathways (or calibrations) of the talionic “eye for eye” principle in the Pentateuch, from the cultural perspective of the ancient Hebrew scribes. In contemporary doctrine it must be acknowledged that the rabbinic consensus remains characterized by a strident denial of any literal intent of this principle, where it is interpreted exclusively as a monetary fine. This consensus emerged, initially, as an instinctive reaction to charges made in the New Testament regarding the excessive literalism of the early Pharisaic sages. With the growth of Christianity and in the wake of the prejudice from the decrees of Hadrian (c. 135 CE), through to the massacres of the crusades - essentially until the present times - the constancy of this denial was inevitable. Leaving the legacy of these last two thousand years aside, how did this provocative idea attain such prominence in the Hebrew Bible? The Ethics of Coercion in the Pentateuch Modern notions of morality and ethics, like those of the ancients, remain deeply embedded in their own time and culture. In the Hebrew Bible—a corpus refined over many centuries prior to its canonization—its synthesis of law, narrative, wisdom teaching, poetry, and prophetic visions lack the consistency of systematic and philosophical models. Indeed, its ethical profile has been described as “fluid and dialogical in character – very much contrary to its popular image.”1 These integrated genres of law, narrative, wisdom teachings were also infused with the formal elements of a political covenant, where goodness was conditional and predicated on the optimum fulfilment of divine commands: 1 J. Barton, Ethics in Ancient Israel (Oxford: Oxford University Press, 2014), 20. I declare to you this day that you shall certainly perish; you shall not long endure on the soil that you are crossing the Jordan to enter and possess. I call heaven and earth to witness against you this day: I have put before you life and death, blessing and curse. Choose life - if you and your offspring would live - by loving the LORD your God, heeding His commands, and holding fast to Him. (Deut 30:15)2 Such imperatives defy the altruistic nature of ethics, attained when individuals make their own judgments about moral values, independent of force or coercion. This gap is exacerbated by the presence of the talionic principle, which appears in all major collections of law in the Hebrew Bible.3 In order to address the ethical crux: Did the talionic principle permit the Israelite male to avenge any physical assault by means of equivalent retaliation? it is necessary to examine the profile of this principle in law, before considering how its retributive pathways (or calibrations) were deployed elsewhere by the biblical scribes. First, however, this brief account of the conception of divine retribution, will set the scene for the forthcoming discussion. The Belief in Divine Retribution The integral conviction, widespread throughout the ancient Near East, was that the workings of history were a manifestation of the retributive principle, for which the gods were directly responsible. Thus, a king’s correct ordering of his country was essential to secure the divine approval of his reign, together with the most favourable outcomes (“destinies”) for him and his 2 Likewise Exod. 15:26; Deut. 6:18; 12:25 ; 12:8; 13:19 ; 21:9; 30:18-20b; etc. 3 Although often referred to as lex talionis (i.e. the law of retaliation) it is formulated as a principle in biblical law. B.S. Jackson, “The Problem of Exodus XXI 22-25 (Ius Talionis),” Vetus Testamentum 37/3 (1973): 273-304. people. In this capacity the king’s official (and often monumental) formulation of law in scholastic tradition occupied a place of prominence in Mesopotamian intellectual life. This was explicit, for example, in the epic of Gilgameš – named after the legendary hero, who embarked on a quest to locate the secret of immortal life.4 The action commences as Gilgameš sets out to find Utnapištim, the antediluvian sage and survivor the flood. Following a series of death-defying escapades, the two meet and Utnapištim recalls the aftermath of his ordeal in the ark: As the rains stop, and upon his safe return to dry land, he and his wife provide thanksgiving offerings to the gods, who descend like flies. Once sated, an ensuing conversation takes place between the gods Enlil and Ea.5 From this vantage point Utnapištim hears Ea admonish Enlil for his wanton destruction of all humankind, berating the loss of innocent lives, with the following rebuke: You sage of the gods, you hero! How could you lack counsel and cause the deluge? On him who commits a sin, inflict his crime! On him who commits a wrong, inflict [his] wrongdoing! Instead of the deluge you caused, a lion could arise to diminish the people… a wolf could arise to diminish the people… 4 Versions of this epic are attested in Sumerian (from Ur) in Akkadian (from Assyria, Sultantepe and Susa, and in a fragment found at the Canaanite site of Tell Megiddo), in Hittite (from Hattusha, modern-day Boghazköi, Asia Minor) and further in Hurrian. 5 Enlil, was the chief god of the city of Nippur, who personified vital forces driving the cosmic geography, from the surface of the earth up to the vaults of the skies, which directly affected mankind; Ea is the Akkadian name for the Sumerian Enki, god of wisdom, magic and fresh water, known for his ingenious solutions to dilemmas and for his goodness towards humanity. famine could happen to slaughter the land… Erra could arise to slaughter the land.” 6 Such “conversations” inform the evolving retributive processes in the Hebrew Bible, in which a destiny-producing fate (or “schicksalentscheidender Tat,”) can be traced,7 where human actions appear to trigger correspondingly (good or bad) consequences. While this idea has been vigorously debated , the impact of such convictions upon the historiographical accounts of the Hebrew Bible is fascinating, since in this genre also “wisdom operates on a principle of analogy, where individual action determines individual fate in a system of connective justice.”8 Such connections were, nonetheless, muted in biblical law, where the talionic formulation functioned as a restraint on the excessive use of corporal punishment in the canonized versions, as shall now be explained. The Talionic Principle in Pentateuchal Law Arguably the most notorious element of biblical law, the talionic principle dictated precision- tailored retributive consequences in cases of physical assault, by means of its “life for life, eye for eye, tooth for tooth, hand for hand” formulations.9 In the history of scholarship it was 6 Tablet XI, lines 183-189, from A.R. George, The Babylonian Gilgamesh Epic: Introduction, Critical Edition and Cuneiform Texts: Volume I (Oxford: Oxford University Press, 2003), 715. 7 K. Koch, “Gibt es ein Vergeltungsdogma im Alten Testament?” Zeitschrift für Theologie und Kirche Vol. 52/1 (1955): 13, 33. 8 M. Oeming, “Wisdom as a Central Category in the Book of the Chronicler: The Significance of the Talio Principle in a Sapiential Construction of History” in Shai-le Sara Japhet: Studies in the Bible Its Exegesis and Its Language, ed. M. Bar-Asher, D. Rom-Shiloni, E. Tov and N. Wazana (Jerusalem: Bialik Institute, 2007), 138, who further suggests that the entire Chronistic history is based upon the sapiental principle of talio. 9 The two main formulations being the taḥat formulation, characterised by the preposition taḥat, (translated “for,” as in “an eye for an eye,”) and the “ka’asher” formulation, which utilizes the conjunction ka’asher, meaning “as,” previously assumed that the principle represents an earlier and primitive stage in the development of criminal law, which gradually gave way to less barbaric punishments. Yet, the fact that monetary fines for assault appear in some of the very earliest legal sources, in both Sumerian and Akkadian collections, indicates that this cannot have been the case.10 In the Levant, similarly sequenced monetary payments for injuries sustained in an assault appear in two thumb-sized fragments from Hazor.
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