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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..

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Download date: 03. 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. These document of seven provisions (LHz A§1-5 and

B§1-2) relating to the injury of a slave’s nose and tooth, together with a penalty for cheek slapping, where penalties of three to ten shekels are explicit. This find is particularly noteworthy because the chemical composition of the tablet is compatible with that of the local clay, which suggests that it may also have been inscribed in Fragment A (Reverse) Hazor 18, kindly reproduced with permissions from Professor Amnon Ben-Tor on behalf of the vicinity of Hazor and was not necessarily The Selz Foundation Hazor Excavations in Memory of Yigal Yadin, together with Professor Wayne Horowitz, at the Hebrew University in Jerusalem, on behalf of the Israel brought into this area from Mesopotamia. Exploration Society.

In general terms the talionic principle is defined as “a concept of punishment whereby the prescribed penalty is identical with, or equivalent to, the offense.”11 Accordingly both the qualitative and quantitative limits of punishment are theoretically fixed, where the punishment of a guilty assailant would be restricted to the body part which s/he had damaged and would correspond to the exact number of limbs or organs injured in any given assault. The principle

or “like,” which is attested in Lev 24:19: “as he has done so shall it be done to him.” See B.S. Jackson, Wisdom

Laws: A Study of the Mishpatim of Exodus 21:1-22:16 (Oxford: Oxford University Press, 2006), 190-206.

10 See the Laws of Ur-Namma (LU 18-23), where payments for assault are specified for injuries to a man’s foot, bone, nose, and tooth and range from two to 60 shekels. See M.T. Roth, Law Collections from Mesopotamia and

Asia Minor (Atlanta: Scholars Press, 1997), 190; also the Old Babylonian Laws of Eshnunna (LE 42 – 47a), in

Roth, Law Collections, 65-66.

11 H. Cohn, “Talion,” in Encyclopaedia Judaica Vol. 19, ed. M. Berenbaum and F.Skolnik (Detroit: Macmillan

Reference, 2007), 463. was of major importance for the scribal guilds or schools in ancient Israel, who preserved and transmitted its various versions before and beyond the Persian period (539-331 BCE), and later in the Temple Scroll from Qumran.12 Its incorporation in all three major collections of law in the Pentateuch, (often described as “codes”),13 utilized relatively fixed terms, which would have been readily identifiable as a legal formulation, while presenting the principle as an integral element of divinely authored law.

Yet each formulation in these collections addressed entirely different situations and circumstances. Thus, in the Covenant Code, the talionic principle was applied exclusively to third-party injuries incurred by a pregnant woman in a public brawl (Exod 21:22-25). In the

Holiness Code, it covered all physical assaults upon men and cattle (Lev 24:17-21), with “life for life” requirement denoting capital punishment. Whereas in the Deuteronomic Code the principle affirmed the punishment of a malicious witness who provided false and incriminating testimony against an innocent person in a capital case (Deut 19:16-20). This revision is particularly notable in view of its affinity with the first provision in Hammurabi’s laws, which likewise rules: “If a man accuses another man and charges him with homicide but cannot bring proof against him, his accuser shall be killed,”14 and is a relevant context that will be revisited shortly.

Each formulation was further contextualized in (or assigned to) the appropriate legal authority for that scribal group, or guild. Hence in the Covenant Code, the talionic formulation

12 11Q19, Column LXIII, lines 12-13.

13 Although these collections are in no way comprehensive, nor do they fully represent contemporaneous legal provisions, where the Covenant Code refers to Exod. 20:22-23:19, the Holiness Code Lev.17-26, and the

Deuteronomic Code, Deut. 12-26.

14 LH1 in Roth, Law Collections, 81; cf. the Mishnah’s ruling that a false witness in a capital case had to be executed, even if the innocent defendant had not been sentenced to death (Makkot 1:4). appears as one of the mishpatim (“rules”) presented to the Israelites at the moment of revelation, spoken by God to Moses on Mount Sinai. Representing the word of God, these mishpatim immediately followed the Decalogue in the narrative continuum of Exodus. The collection assumes the availability of a pre-institutional authority, possibly a group of local elders or tribal heads, as implied by the interpolation of the Hebrew phrase ve-natan biplilim, “the payment to be based on reckoning” (Exod 21:22). Here scholars have suggested that this alludes to potential third-party moderation, where the approval of impartial and independent assessors would ensure that fair compensation was paid.

In the Holiness Code, the principle appears encased in an account of blasphemy committed by the son of Shelomith bat Dibri, who is punished by stoning (Lev 24:13-16, 23), where the “life for life” stipulated the death penalty for homicide. This revision covers all instances of physical assault, including those inflicted on livestock, and constituted an effective demonstration of the statutory powers of the Priestly leaders to enforce capital punishment.

While dispute resolution clearly did take place in local temples in the Neo-Babylonian period, there is no extra-biblical evidence that such hearings occurred in the Jerusalem temple.

Hedging their bets more widely, the Deuteronomic scribes preferred that “the two parties to the dispute appear before the Lord, before the priests or magistrates in authority at the time,” who can sentence the malicious witness to death (Deut 19:18). This emphasis on

“justice, justice shall you pursue” (Deut 16:20) affirms this ideal in broad brush strokes, rather than constitutional specifics. Other than providing “magistrates and officials for all your tribes, in all the settlements that the Lord your God is giving you” (Deut 16:18), together with the aforementioned prohibition of false testimony, there is next to no practical information in the

Deuteronomic material about the workings of a judiciary—let alone its transactional records— even though the presence of the local court (and its elders) at the city gate is presumed. In the later spectrum of post-biblical literature, the apocryphal tale of Susanna and the Elders provides a striking exemplar of the fulfilment of this law, synthesized in the figure of Daniel.15

For the scribes of the Covenant Code, the talionic formulation was one of a sequence of provisions that was thematically modelled on the laws engraved upon King Hammurabi’s monumental stele, discovered between December 1901 - January 1902 at the ancient Elamite capital of Susa, and is now housed at the Musée du Louvre in Paris. Hammurabi reigned (c.

1792-1750 BCE) as the sixth ruler of the First Dynasty of Babylon, defeating powerful rival kingdoms and massively expanding his empire, while developing a complex military bureaucracy to control his newly conquered territories. Modelling his reign as one renowned for attaining the apex of divine justice, he was responsible for what was (and still is) the most influential and prestigious expression of cuneiform law. His detailed provisions were framed in an explanatory prologue and concluding epilogue, in which he proclaimed: “These are the just decisions which Hammurabi, the able king, has established and thereby has directed the land along the course of truth and the correct way of life.”16 Affirming his royal appointment as a divine calling, he adds: “The great gods having chosen me, I am indeed the shepherd who brings peace, whose sceptre is just.”17 It is no coincidence that the Bible’s paradigmatic leaders, particularly Moses and David, are depicted as shepherds tending their flocks, given the prevalence of this motif. Copies of Hammurabi’s stele would have been erected in major city squares and temple courtyards, remaining in prominent public display during his reign and potentially also during those of his son (Samsu-iluna) and successors. By the 12th century BCE,

15 This tale is known in two Greek recensions, as a continuum of Daniel in LXX; the Theodotion version was canonised by the Roman Catholic Church.

16 Roth, Law Collections, lines xlvii 1-8, 133.

17 Roth, Law Collections, 133. the stele was taken from the Ebabbar temple in Sippar as highly-prized booty, by the Elamite king Šutruk-Naḫḫunte and relocated to his capital city in Susa.

According to Godfrey Driver and John Miles, these Babylonian laws represented “a series of amendments and restatements of parts of the law in force when he wrote,”18 - a view which is fully corroborated by contemporaneous legal records, including rescripts, from

Hammurabi’s reign. Yet, it is also clear that these individual stipulations were by no means normative, nor binding on any of the local courts in Babylon. Hammurabi’s laws entered the professional training curriculum and general scholastic tradition as a model, to be learned and copied in the temples and palaces of ancient Mesopotamia in the centuries that followed. With dozens of duplicates, extracts, and commentaries, including a bilingual Sumerian-Akkadian manuscript and references to the composition in a first millennium catalogue - not forgetting copies from Ashurbanipal’s royal library at Nineveh—the collection became a literary classic

- and one which remained in scribal circulation for more than a millennium after the king’s death.

In this capacity Hammurabi’s laws afforded an impressive prototype for the Covenant

Code’s scribes, who preserved the subject-sequence of these Babylonian provisions in Exodus

20:22-23:19, but customized alternative circumstances and resolutions throughout. The question of how and when this occurred is unknown, where David Wright’s view that the

Covenant Code’s scribes drew primarily and directly upon the laws of Hammurabi during the

Neo-Assyrian period, between 740 and 640 BCE, has raised more questions than answers.19

Here Wright concluded that “the evidence indicates that CC is a creative academic work, by

18 G.R. Driver and J.C. Miles, The Babylonian Laws: Legal Commentary Volume I (Oxford: Clarendon Press,

1952), 45.

19 D.P. Wright, Inventing God’s Law: How the Covenant Code of the Bible Used and Revised the Laws of

Hammurabi (Oxford: Oxford University Press, 2009). and large a unitary composition, whose goal is mainly ideological, to stand as a counter- statement to the Assyrian hegemony prevailing at the time of is composition.”20

Aside from the preceding questions, the appropriation of the Babylonian stipulation “If an awīlu should blind the eye of another awīlu of his own rank, they shall blind his eye,”21 is readily apparent in the formulation of Exodus 21:24 (cf. Lev 24:20; Deut 19:21), which retains the “eye for an eye” and “tooth for a tooth” element,22 but where the sequential “fracture for fracture” distinction is recalled only in Leviticus 24:20. In the promulgation of Hammurabi’s laws Babylonian society is presented as rigidly hierarchical, where even unarticulated social categories were crucial. In this context it is remarkable that a nation of former escaped slaves,

(by their own account) align themselves directly with the rulings assigned to the awīlu, i.e. the socially highest ranked adult male in Hammurabi’s cities, rather than with the muškenu (“a member of the commoner class,”) or the warad awīlim (the “awīlu’s slave”).

For all that, however, it is also clear that there is no narrative exemplar of this literal retributive process in the Hebrew Bible, where both qualitative and quantitative consequences were incurred for injuries to eyes, teeth, hands, legs, or feet. 23 This absence of finite, or strict sense exemplars (akin to the “plain sense,” explanation in rabbinic exegesis) does not, however, signify a conscious disinterest in questions of retributive justice, as the reworking of the principle in narrative and historiographic accounts is about to reveal.

20 Wright, Inventing God’s Law, 346.

21 LH 196 (M.T. Roth, Law Collections, 121).

22 LH 200: “If an awīlu knock the tooth of another awīlu, in his own rank, they shall knock out his tooth” (Roth,

Law Collections, 121).

23 See Jacobs, The Body as Property, 134-185.

Beyond the Literal (“Finite or Strict Sense”) Applications

Despite this absence of finite or strict-sense exemplars, the talionic principle appeared firmly hard-wired into the ethical mainframe of the patriarchal narratives, as Bernard Jackson explains, “If we ask, then, why Abraham was tested, the answer would appear to reside in the talionic principle, found elsewhere in the patriarchal narratives (Jacob, the deceiver, deceived): here: Abraham, the tester of God (Genesis 15) is in turn tested by God.”24 Such pathways were never merely the random incidence of subtle ironies, but communicated confidence in the perfection of divine justice and in God’s power to manifest it appropriately. Juxtaposed in these accounts was also the virtue of mercy, which surfaced in response to marginalized figures:

Hagar may be thrown out of Abraham’s home and left to die of thirst in the wilderness, but

God will hear her. Moreover, he will give her the exact same reward that he has promised to those who have oppressed her: her son, Ishmael will become “a great nation” (Gen 21:18).

Admittedly, such outcomes were never entirely consistent, yet such initiatives do indicate a keen sensitivity to the effects of human prejudice, together with a profound desire to redress the effects of such injustice.

The retributive rationale further surfaces in a number of other foundational accounts, including historiographical sources. Thus, Phillip Nel maintains that in Genesis 38 (involving

Tamar and Judah), Ruth, and Judges 13-16 (Samson) “not only is the organic completeness of the story units determined by a prevailing judicial order, but the story-cycle of Israel’s early history is guided by a supreme Providence that could not be divorced from the principle of talion.”25 The notion of retributive justice appears all the more acute in the build-up to the

24 B. Jackson, Studies in The Semiotics of Biblical Law (Sheffield: Sheffield Academic Press, 2000), 241, referring to the testing of Abraham in Genesis 22, where he was asked to offer his son Isaac as a burnt offering. This was in response to Genesis 15:2, where Abram asks: “O Lord God, what can you give me, seeing that I die childless?”. Likewise, in his asking for proof of the promise of land, “O Lord God, how shall I know that I am to possess it?” in Genesis 15:8.

25 P.J. Nel, “The Talion Principle,” 27. Israelites’ dramatic escape from Egypt (Exod 1-12). The Pharaoh who decrees that “every boy that is born you shall throw into the Nile” (Exod 1:22) is punished accordingly: “In the middle of the night the Lord struck down all the first-born in the land of Egypt, from the first born of

Pharaoh who sat on the throne to the first born of the captive who was in the dungeon and all the first born of the cattle” (Exod 12:29). On the verge of liberation from slavery, Israel’s all- powerful blood redeemer avenges the loss of her formerly drowned sons. Such retribution, however, was never exact: lacking both the quantitative and qualitative criteria inherent in the

“life for life, eye for eye,” formulations, insofar as the total number of the new-born Hebrew boys thrown into the Nile would be clearly outnumbered by all Egypt’s first-born males (not to mention the additional cattle). Nor is there any attempt to provide the qualitative legal equivalence. The status of the Hebrews as slaves appears in stark relief to that of each freeborn

Egyptian son and heir – not to mention their ruling monarch, the Pharaoh.

Redeployment and Refinement: Calibrations of Reflective and Instrumental Talion

By-passing the qualitative and quantitative fixtures integral in biblical laws and branching out on other pathways, or calibrations, it is also evident that the talionic principle was more creatively deployed outside of the Pentateuch. Thus, the idea of an intrinsic link between a negative act and an inevitable consequence for its perpetrator was dramatically refined also in the mind of the psalmist (7:17), who acknowledged that “his mischief will recoil upon his own head; his lawlessness will come down upon his skull.”

Such refinements included the further calibration of “reflective talion,” which denoted a punishment that mirrored either the crime or the character flaw of its perpetrator, projecting it directly back upon their person, to their obvious detriment. As Mary Douglas explained: “the principle of equivalent retaliation is quite blatant in the narrative books: Why did Jezebel die by falling out of a high window? Answer: the false woman built high places for false gods,”26 recalling sharply as the psalmist’s preference: “He who builds a high threshold invites broken bones” (Ps 17:19b). This variant calibration appears also in the account of Absalom’s untimely death. According to the biblical narrator, this was a direct result of his own pride and vanity, specifically in the luxuriance of his own hair – the sheer weight of which is magnified in vast and unrealistic proportions: “No one in all Israel was so admired for his beauty as Absalom; from the sole of his foot to the crown of his head he was without blemish. When he cut his hair

– he had to have it cut every year for it grew too heavy for him – the hair of his head weighed two hundred shekels by the royal weight” (2 Sam 14:25-26). His tragic end is brought about clearly by the very object of his sin: “Absalom was riding on a mule and as the mule passed under the tangled branches of a great terebinth, his hair got caught in the terebinth; he was held between heaven and earth as the mule kept going” (2 Sam 18:9).27

A further deployment of the principle is evident, but one which manifests a slightly different pathway, or calibration, and which has been termed “instrumental talion.” Here the limb or organ responsible for carrying out the crime is consequentially cut or injured,28 or as defined by Yael Shemesh: “a punishment of the offending organ.”29 This calibration is graphically illustrated in Proverbs 30:17, where “the eye that mocks a father and disdains the homage due to a mother; the ravens of the brook shall gouge it out; young eagles will devour

26 M. Douglas, Leviticus as Literature (Oxford: Oxford University Press, 1999), 214.

27 Also Mishnah, Sotah 1:8.

28 S. Jacobs, “Instrumental Talion in Deuteronomic Law,” Zeitschrift für altorientalische und biblische

Rechtsgeschichte 16 (2010): 263-278.

29 Y. Shemesh, “Punishment of the Offending Organ in Biblical Literature,” Vetus Testamentum 55/3 (2005): 343-

365 (343). it,” and recalls earlier Babylonian law, where failure to recognize one’s adoptive parents is punishable by plucking out the child’s eye.30

The process was also notable in Deuteronomy 25:11-12 which stated: “If two men get into a fight with one another, and the wife of one intervenes to rescue her husband from the grip of his opponent, by reaching out and by seizing his genitals, you shall cut off her hand; show no pity.” While these biblical terms most closely align with Middle Assyrian (rather than

Babylonian) law, the use of corporal punishment in such a scenario is attested only in case law from Nuzi.31 In relation to the terminology in Deut 25:11-12, none of the more sensational interpretations the can be substantiated on academic grounds: i.e. there are no precedents for identifying this punishment as symbolic form of female circumcision or cliterodectomy, and nor is it appropriate to suggest that “you shall cut off her hand,” was a euphemism for shaving the wife’s groin.32

What was clear, however, was that the amputation of a woman’s hand or fingers was a known punishment, adapted as a form of instrumental talion by the Deuteronomist to allay possibly one of his greatest fears: that a man’s participation in the cult could not be threatened by a woman, specifically another man’s wife in a fight.33 The severity of this mutilation reflected the heinous nature of the wife’s offence, further in its capacity to restrict a man’s physical ability to father children. Here the talionic principle was limited exclusively to a wife

30 LH193: “If the child of (i.e. reared by) a courtier (mar girseqîm) or the child of (i.e. reared by) a sekretu identifies with his father’s house and rejects the father who raised him or the mother who raised him and departs for his father’s house, they shall pluck out his eye,” Roth, Law Collections, 120.

31 Jacobs, “Instrumental Talion,” 271-276.

32 Jacobs, The Body as Property, 154-164.

33 Where the provisions in Lev 22:24 and Deut 23:3 prohibited any genitally-injured, or castrated, male from entering the wilderness sanctuary and its cult. of the defended male, rather than his mother, sister, or other female bystander. As the assailant’s husband, he would be financially responsible for his wife’s actions (including the liability for restitution arising from her crimes), but also because he was the beneficiary of her intervention. Such punishment could not, therefore, be applied to any other woman, since such mutilation - of the defendant’s mother or sister, for example - would have detrimental (and cost) implications for her own husband or father, rather than for the husband of the intervening wife.

Both these calibrations highlight the importance of the talionic principle beyond its role as a juridical restraint on physical vengeance, through which the biblical scribes could delineate their imagined hallmark of the divine justice. To what extent the process of reflective talion provided a more palatable alternative to the death penalty for David’s son Absolom – whose rebelliousness would otherwise warrant capital punishment in Deut 21:8 - is beyond the scope of this essay – as are the affinities of Deut 25:11-12 with Middle Assyrian and Nuzi case law, where each source provides a clear depiction of instrumental talion in these circumstances.

Conclusion

Returning to the original question: Did the prominence of the talionic principle in biblical law permit the adult Israelite male to avenge any physical assault by means of equivalent retaliation? Clearly the restrictive language of each formulation did not, where the projection of each law in a revelatory or juridical locus - at Sinai; in court, palace, temple, or city gate; or even in the presence of a local elder – limited its use to those specific authorities exclusively.

Neither the principle, nor its formulation in biblical law, gave carte blanche to any individual to employ retaliatory violence in cases of assault, irrespective of its rhetorical force as an expression of divine resolution. Its legal prominence, however, conveyed the belief that future juridical authorities could, in theory, apply the principle to the specific situations described in biblical law – and that such verdicts would reflect the most prestigious conception of justice.

For the surviving Judaean authorities in the Persian period, whose monarchies had disappeared in the anonymity of exile, the need to represent their most sacred legal collections as the pinnacle of exemplary justice, and as the stipulated conditions for the fulfilment of their national covenant, was paramount. As such, the principle was never intended to approve individual retaliatory acts, but rather to affirm the supreme rule of Israel’s God and in his perfect regulation of juridical sphere “on earth as it is in heaven.” 34

Bibliography

Barton, John. Ethics in Ancient Israel. Oxford: Oxford University Press, 2014.

Cohn, H. “Talion.” Page 463 in Encyclopaedia Judaica: Volume 19. 2nd edition. Edited by M.

Berenbaum and F. Skolnik. Detroit: Macmillan Reference, 2007.

George, A.R. The Babylonian Gilgamesh Epic: Introduction, Critical Edition and Cuneiform

Texts: Volume I. Oxford: Oxford University Press, 2003.

Horowitz, W., T. Oshima and F. Vucosavović. “Hazor 18: Fragments of a Cuneiform Law

Collection from Hazor.” Israel Exploration Journal 62/2 (2012): 158-176.

Jackson, B. S. “The Problem of Exodus XXI 22-25 (Ius Talionis).” VT 37/3 (1973): 273-304.

—. Studies in The Semiotics of Biblical Law. JSOTSup 314. Sheffield: Sheffield Academic

Press, 2000.

—. Wisdom Laws: A Study of the Mishpatim of Exodus 21:1-22:16. Oxford: Oxford University

Press, 2006.

Jacobs, S. “Instrumental Talion in Deuteronomic Law.” Zeitschrift für altorientalische und biblische Rechtsgeschichte 16 (2010): 263-278.

34 As Matthew 6:10. —. The Body as Property: Physical Disfigurement in Biblical Law. Library of the Hebrew

Bible/Old Testament Series 582. London: Bloomsbury Academic Publishing, 2014.

Koch, K. “Gibt es ein Vergeltungsdogma im Alten Testament?” Zeitschrift für Theologie und

Kirche 52/1 (1955): 1-42.

Nel, P.J. “The Talion Principle in Old Testament Narratives.” Journal of Northwest Semitic

Languages 20/1 (1994): 21-29.

Oeming, M. “Wisdom as a Central Category in the Book of the Chronicler: The Significance of the Talio Principle in a Sapiential Construction of History.” Pages 125-141 in Shai le-Sara

Japhet: Studies in the Bible Its Exegesis and Its Language. Edited by M. Bar-Asher, D. Rom-

Shiloni, E. Tov and N. Wazana. Jerusalem: Bialik Institute, 2007.

Roth, M.T. Law Collections from Mesopotamia and Asia Minor. SBL Writings From the

Ancient World, Vol. 6. Second Edition. Atlanta: Scholars Press, 1997.

Shemesh, Y. “Punishment of the Offending Organ in Biblical Literature,” Vetus Testamentum

55/3 (2005): 343-365.

Wright, D.P. Inventing God’s Law: How the Covenant Code of the Bible Used and Revised the Laws of Hammurabi. Oxford: Oxford University Press, 2009.