Vengeance As Justice: Passages I Highlighted in My Copy of “Eye for an Eye”

William Ian Miller’s Eye for an Eye did not make it into my “top ten books I read this year” list for 2017, but it was one of the more thought-provoking things I read last year. Miller is an unusual creature: part law professor, part medievalist, Miller is equally comfortable discussing ancient Hittite legal decrees, the etymology of old Norse runes, the tropes of Elizabethan Drama, and modern tort law. I suppose if you were to take J.R.R. Tolkien, Thomas Schelling, a good dose of dead-pan humor, a pinch of the morbid, and then shook them up together in a bottle, Mr. Miller is the creature who would emerge.

Miller’s earliest books were on medieval Iceland’s law and literature. If you are at all familiar with the sagas, it is easy to detect their influence on in the titles of his later works. His obsessions are by and large theirs: Disgust, Courage, Humiliation, Faking It, and so forth. The thread that weaves through each of these (and indeed the sagas as a whole) is the politics of social life. When one man (or one woman) meets another calculations begin: how should I treat this person? Are we equals, or is he my social inferior? Or perhaps he is my social superior? How do I let him know what my social status is, and how should I respond if he does not take the hint? Is this person worth an insult? A fight? What are the consequences of letting things slide? What are the consequences of refusing to do so?

These type of questions naturally lead to the topic of this book: lex talionis, the law of the talion, the principle of an eye for an eye, of justice through vengeance, retaliation sanctioned by culture and law. This understanding of justice is what propels the Icelandic sagas. But it wasn’t just a Viking tick. “Eye for an eye” was standard practice just about everywhere a few thousand years ago, from the shores of Germainia and the fields of the Greek polis to the warring tribes of Canaan and the even more distant lands of the Kurus and the Zhou.  We view this understanding of justice as backward and crude. We say things like “an eye for an eye makes the whole world blind.” Miller aims to convince us otherwise. We have a lot to learn from these talionic cultures, he argues, and our world could be made a more just place if we could humble ourselves enough to learn from them.

I am not going to provide a precis of Miller’s argument here. Like past editions of “Passages I Highlighted” (see here) I will reserve myself to quoting the passages of this book I found most interesting. But to really give you a sense for Miller’s argument, I think the best thing I can do is quote first from another one of his books, one that focuses specifically on Icelandic society. He begins that book by quoting a passage from an obscure saga. In only a paragraph, the saga lays out what lex talionis looked like in real life:

Some Norwegian merchants chopped off Skæring’s hand. Gudmund was given self-judgment in the injury case. Haf Brandsson [Gudmund’s second cousin] and Gudmund together adjudged compensation in the amount of thirty hundreds, which was to be paid over immediately. Gudmund then rode away from the ship. But the Norwegians confronted Haf, who had remained behind; they thought the judgment had been too steep and they asked him to do one of two things: either reduce the award or swear an oath. Haf refused to do either.

Some people rode after Gudmund and told him what had happened. He turned back immediately and asked Haf what was going on. Haf told him where matters stood. Gudmund said, “Swear the oath, Haf, or else I will do it, but then they will have to pay sixty hundreds. The oath of either one of us will have the same price as Skæring’s hand.” 

The Norwegians refused the offer. “Then I shall make you another proposal,” said Gudmund. “I will pay Skæring the thirty hundreds that you were judged to pay, but I shall choose one man from amongst you who seems to me of equivalent standing with Skæring and chop off his hand. You may then compensate that man’s hand as cheaply as you wish.”

This did not appeal to the Norwegians and they decided to pay the original award immediately. Gudmund took Skæring with him when they left the ship. (G.dýri 26:212) 1

Iceland was a country without a state. They had laws but no government to enforce them. If you were wronged, the responsibility to right the wrong rested with you and your kin. To prevent retaliatory feuds the Icelanders would often give the wronged party a chance to stand in judgement and mete out a punishment to pay for their mistakes and restore balance  between the two groups. The saga passage you’ve just read is an excellent example of how the system worked. Miller’s comments on it are worth pondering:

By the time the saga writer focuses attention on this incident it is not the hand that is the subject of the dispute but the legitimacy and justice of Gudmund’s judgment. The Norwegians think the award excessive, and not without reason. More than a few men’s lives at this time were compensated for with thirty hundreds or less. Gudmund, however, is able to justify astutely his over-reaching by giving these men of the market a lesson on the contingency of value and values. To the Norwegians the award should reflect the price of a middling Icelandic hand. Gudmund forces them to conceive of the award in a different way: it is not the price of buying Skæring’s hand, but the price of preserving a Norwegian hand. By introducing the prospect of one of their hands to balance against Skæring’s, he is able to remind the Norwegians that the thirty hundreds they must pay purchases more than Skæring’s hand; it also buys off vengeance in kind. He is also able to force them to take into account the costs of personalizing the injury. Most people, he bets, are willing to pay more to save their own hands than they would be willing to pay to take someone else’s. The justice of Gudmund’s award thus depends on a redefinition of its significance. Rather than buying Skæring’s hand, the Norwegians are preserving their own, and the price, they now feel, is well worth paying. Fellow feeling thus comes not in the form of imagining Skæring’s anguish and pain as Skæring’s, but in imagining the pain as their own. 2

This is the logic of lex talionis. This is why “an eye for an eye” did not in fact make the whole world go blind. The principle of an eye for an eye, as Miller sees it, is “the more ancient and deeper notion that justice is a matter of restoring balance, achieving equity, determining equivalence, making reparations… getting back to zero, to even.” 3] Trading eyes for eyes is not so much about indiscriminate, unthinking violence as it is carefully calculated attempts to match punishment to crime. Talionic justice is a system built on deterrence–not only deterring criminals from committing crimes, but deterring vengeance seekers from exacting too heavy a price in retaliation for crimes committed against them. This is empathy enforced by blood. You think carefully about the pain you inflict on others knowing, that measure for measure, the pain you give others will be given back to you.

We have a sorry habit thinking about revenge as “as going postal and blasting away,” but as Miller notes, “revenge cultures did not think of it that way.” 4]This is obvious if you read the stories revenge cultures created. Characters in the Icelandic sagas approach murder with the meticulousness of a father inspecting his daughter’s suitor. They conducted their feuds not in the heat of rage, but through cold calculation. Heroes from revenge plays like The Oresteia cycle or The Orphan of Zhao plan their vengeance months or even years in advance, and when the moment comes often have to be goaded into taking revenge. One gets the sense that these people believed that feuding was utterly necessary but not entirely natural. As Miller says:

The core belief at the heart of most revenge cultures is that man is more naturally a chicken than a wolf. Thus revenge cultures are invariably shame cultures and have to devote enormous cultural machinery to getting people to remember past wrongs. They develop elaborate means of goading, shaming, and humiliating to recall people to their dangerous duty they would as soon forget. 5

And there are, after all, lots of reasons not to feud in the first place:

A person obliged to take revenge must resist all kinds of temptations to forgive and forget. His cowardice, his reasoning mobilize arguments of the sort that forgiveness is a virtue, or that revenge is best left to God or the gods, or that it is an irrational obsession with sunk costs. Excuses. Excuses. As I have argued elsewhere, conventional wisdom conceives of vengeance cultures as barely cultured at all, as all id and no superego: big dumb hot-tempered brutes looking for excuses to kill. But we are no less naturally homo pullus than homo lupus, as much man the chicken as man the wolf. 6

Ties of kinship and friendship were the easiest way to make the chicken a wolf. Deterrence only works if you can be sure that there is someone who will strike back for you if you are struck down. The pressure to retaliate for wrongs done by your kin were thus immense. But so too was the pressure your kin might put on you to keep you from acting stupid enough to get killed in the first place. They are both responsible for avenging you and stopping you from doing anything vengeance-worthy. In the world of lex talionis, to be a brother is to be his keeper.

An interesting side effect of all this is the impact these obligations had on one’s sense of identity. No man was truly alone. To state your name was to state all of the ties to other human beings one has, and with that, all of the obligations that follow from them. 7 Therefore, one common way vengeance seekers ginned themselves up for revenge by was declaring who they were. Miller calls an act of public “remembering:”

Yet remembering, even still, is a richly obligational notion, which is perhaps why we opt for forgetfulness; remembering is intimately involved with paying, paying back, with reward and punishment. We thus remember people in our wills, or remember someone with a tip, though tellingly “remember” in such settings now sounds a little old-fashioned fashioned if not quite obsolete. But for Hamlet there was no doubt that to remember meant to he mindful of duty, to he mindful of one’s proper role; remembering involved reminding oneself or recalling oneself to one’s proper place.

To remember, in the sense of to he recalled to one’s proper role, means above all not to forget oneself: “Comfort, my liege; remember who you are. K. Richard. I had forgot myself: am I not king?” (3.z,.8z- 83 ). To fail to remember oneself, to forget oneself, is to fail in one’s duty or one’s dignity. It is a signature trope of characters in the Jacobean drama to remind themselves of who they are amidst the general collapse of their worlds by invoking their own names to shore up the fragments of their being, claiming still to be the very person they feel is being annihilated by hostile forces: “I am the Duchess of Malfi still,” “I am Anthony yet,” and thus the chilling force of the failed attempt at the same trope: “Who is it that can tell me who I am? Fool: Lear’s shadow. “‘ 8

But revenge was more than a simple matter of remembering who one was and acting on it.  Revenge in a talionic regime was actually quite complicated:

Getting the measure right so that both parties can sense the rightness of the measure gives rise to remarkably subtle ways of evaluating ing and compensating for harms. The worry about how hard it is to come up with equivalences is at the core of primitive systems of justice, and it is hardly something we have adequately resolved today. 9

One of the easiest ways to do this was to attach monetary value directly to the lives involved. We still do this today, of course (that is what tort law is all about), but both the process and purpose of the way we assign monetary value to injury and death has changed. Miller illustrates the difference by comparing modern tort disputes to their Biblical variant:

It is a different world when a biblical tort creditor faces his injuror under the law of the talion. Observe two people bargaining over an eye one knocked out of the other in a talionic society. Let us Call our two actors V for victim and W for wrongdoer.”

V says to W, “I want you to pay me for my eye you gouged out at the party last night.”

W answers, pulling out his worker’s compensation schedule, “OK, here’s 25,000 shekels.”

V: “No way. I would never have agreed to give up my eye, to sell it to you, a perfectly good and useful eye, for a measly 25,000 had you tried to buy it from me before you just up and took it. You are trying to get away with paying me what it is worth after it has been blinded, with a little sop for my pain and suffering and my loss of value as a possible slave or soldier. To hell with that. I do not deem my eye priceless; but no way you would have coaxed me out of it for less than a few million shekels.”

W. “Nope, 25,000 is what the insurance company says it is worth.”

V: “But the law in this jurisdiction, I have just been informed, stipulates that I can take your eye as recompense, and this is what I am going to do.”

W: “Oops, well how about 5,000,000 then? I really was only joking when I offered 25,000. 10

Compare this with the modern principle of liability-rule protection:

 Suppose I lose my eye in a car accident for which you were at fault. In our legal order you must pay me for the loss of my eye. But you get it at a bargain. I can get only what the court, or the worker’s comp schedules, or the insurance company says is the going rate for an involuntarily transferred eye as long as it still leaves me with one good one. You do not have to pay me what I would have demanded had you bargained with me ahead of time for the right to take it (assuming for the sake of the hypothetical that I could legally agree to have my eye gouged out). But that is the problem with accidents.  One does not usually set about to do them on purpose, and so all the bargaining must he done after the transfer has been effected and the damage is done. My eye in such a regime is cheap for the taking. 

Compare, though, how much improved my bargaining position is in a talionic regime, and thus how much pricier my eye will be. The talion structures the bargaining situation to simulate the hypothetical bargain that would have been struck had I been able to set the price of my eye before you took it. It does this by a neat trick of substitution. Instead of receiving a price for the taking of my eye, I get to demand the price you will be willing to pay to keep yours. It is not so much that I think your eye substitutable for mine. It is that you do. You will in fact play the role of me valuing my eye before it was taken out, and the talion assumes that you will value yours as I would have valued mine. The talion works some quick magic: as soon as you take my eye, in that instant your eye becomes mine; I now possess the entitlement to it. And that entitlement is protected by a property rule. I get to set the price, and you will have to accede to my terms to keep me from extracting. 11

An interesting comparison here (that Miller does not make) is with compensation packages awarded to families whose children died due to industrial malfeasance. In the early days awards might be as low as $10 per child, representing the amount of money the child would have made for his family had he not died as a child-worker. 12 The Victorians and their predecessors talked about how they were more civilized than their Saxon forbearers, but in many ways the life of a barbarian was valued far higher than a modern man’s:

We are wont to sneer at talionic societies and say that life is cheap, nasty, and brutish among such violent souls. But cheap is exactly what life is not among talionic peoples. The reason such societies may often be so poor is not because life is cheap, but because life is so expensive that it is hard for them to free up capital to build roads and factories. Imagine if the costs of replacing horses with automobiles meant that every road fatality gave the victim’s kin a right to kill or to extract a ransom measured at the value the person at fault placed on keeping his life! It is that life is cheap among us, despite all our piety about dignity and the pricelessness of human life. We put prices on it all the time, and not very high ones either. I buy life insurance at pretty good rates. I judge that my family thinks me only slightly undervalued at the $2,500 per year that I pay out in premiums to buy them the right to about $1,000,000 when I die. Don’t be too harsh in blaming me for attributing to them such a low estimation of my own worth: I want to make sure they miss me too. 13

To speak more precisely: it is not life itself that is expensive in talionic honor cultures, but honorable life that is expensive. And honorable life need not mean a short life either. It was not always death before dishonor. It was also live to fight another day so that you could get even with the person who dishonored you. But you had to fight on another day. Honor did not allow for refusing to redeem lost honor. 14

These notions of honor did not just determine wergelds. They distorted ancient price systems in all sorts of ways:

A perfect example cones from Hainmurabi’s laws, which provided that a commoner had to pay less for being cured by a physician than a high-status awilu had to pay, so as to reflect the different social value of curing one rather than the other.’ 15

In Bloodtaking and Pacemaking, which I quoted earlier, Miller describes how competitions for honor made functional markets almost impossible in medieval Iceland:

Some of the social complexity that attended exchanges and the uniqueness of some of the saga evidence can be discerned in the cases that follow. In them the parties were forced to deal with each other outside the regularized convivial channels and outside the boundaries of a place clearly designated as a marketplace. The context, in other words, didn’t normalize the appropriate mode of exchange and it was up to the parties to define the nature of their transaction. At times the pressing need of famine and hay shortage brought them together, at times the desire for a specific prestige good, like fine horses or fine swords, and at times the demands of liability in law and feud. The cases are remarkable in their detail, and they reveal how difficult it might be, in the absence of a market economy and its accompanying mercantile assumptions, to transact without ill- feeling. In the jargon of economists, the transaction costs were high. We find that the completion of a transaction did not depend on the determination of a mutually acceptable price, but rather on the determination of the mode in which the transfer, if there was to be one, would take place. We also see that there was a resistance to transfers by sale between members of the same social rank. 16

In particular, men would respond angrily and often violently when other men of equal social status (read: honor) attempted to buy or sell something to them directly. Every interaction between Icelanders was a chance for one to put the other into his place. Echoes of this idea can be found in 21st century sagas: when Tony Soprano gifts a golf-club to a doctor in return for better medical service for his uncle, he is not just exchanging one good for another:

 Likewise, one Viking could not buy or sell to another without fear that bigger games were afoot:

Accounts are uniform in showing parties who have been approached to sell goods to be defensive about what they perceive as aggressive acts. And would-be buyers are only too ready to confirm their fears. In Sturlu saga (25 :98–99) a request to buy food is made specifically for the purpose of harassing the other party. The refusal is not only anticipated but wished for so as to provide the pretext for even more aggressive action (see also Íslend. 32:261–62). An earlier phase of the same case reveals that a completed purchase need not spell the end of tensions. A bóndi who sold Sturla’s son some wormy meal was given the choice of being summoned or of fostering another of Sturla’s sons (Sturla 25 :98). The bóndi chose the latter. Forced fostering as a means of reprisal evidences a keen sense of the symbolic and ironic possibilities inherent in the transfer of food: calories could be “purchased” just as well by transporting gaping maws to the food as by bringing the food to the maw. These cases illustrate that the ominous significances of attempts to buy were available to disputants to be consciously manipulated in the strategies of the disputing process….

The cases give a strong sense that buying and selling was hostile; it was something one did with those from a distance, either spatial distance, as with Norwegians, or social distance, as with peddlers and hawkers of marginal social status. 17

Because “bargaining was never quite free of duress and intimidation” true markets as we understand them today have difficulty operating in honor cultures. In economic terms, these markets are “subject to the inefficiencies imposed by the pre-market mentalities of the people operating in them.” 18

If buying and selling were dragged down by honor contests, talonic justice itself could be distorted in odd ways by fine graduations in honor:

Such cultures had no qualms about measuring human value in money units. The dishonor was not in being priced, as some among us believe, but in being low-priced. But I imagine there were a slew of anxieties that might plague a zero-shilling man of middling sensibility. Here are just some of the problems. It is one thing to legislate that a man is worth 1500 shillings; it is another to collect that much if your 1500-shilling brother meets his end by having his skull split by a person he quarreled with. Wergeld is likely to be forthcoming only if the kin of the corpse constitute a genuine threat to take revenge. This is yet another reason it is misguided to think that compensation signals a softening of the hard principle of talionic justice. Compensation is a possibility only if revenge is a very likely probability. Who is going to pay you enough to assuage your honor if he does not fear your ability to reclaim your honor by killing him if he does not pay up? 19

Vengeance and honor are thus linked tightly together. However, vengeance does not necessarily mean constant violence:

In my writings on the Icelandic sagas I have sought to hammer home the point that the wise bloodfeuder did not need to respond aggressively to every wrong done him; in fact, he was stupid and had a very short life if he did so. He just needed to make sure people thought him perfectly capable of avenging in blood the next offense done him. 20

But what about those who don’t have the capacity to pursue vengeance themselves? Miller speculates:

One question to ask, though ultimately not answerable given the evidence, is whether victims on average actually got more compensation then than now. My suspicion is that in high-stakes feudlike situations, the ancients were committed to steep compensation because that was the only way peace had a chance (and the parties were likely to he rich enough to buy peace); but for injuries that cross status lines liberal democracies do a better job of leveling some of the disparity in treatment between the weak and the powerful. If in the Psalms and Prophets God had to be the Redeemer – that is, the avenger of the blood – for the poor, for widows and orphans, that is because they were not getting much help from human avengers. 21

This also helps explain why (despite what James C. Scott’s new book might tell you), society’s weakest members sometimes loved their kings:

To be the protector of the poor and weak was a moral demand recognized by the earliest statelike authority, and a king considered it to reflect well on himself that he could offer justice to the weak. This from the prologue to the laws of Ur-Namma, Sumer, c. 31oo B.C.: “I did not deliver the orphan to the rich. I did not deliver the widow to the mighty. I did not deliver the man with but one shekel to the man with one mina. I did not deliver the man with but one sheep to the man with one ox … I eliminated enmity, violence, and cries for justice. I established justice in the land.” Powerful stuff, by anyone’s criteria. 22

But getting kings involved in providing justice creates other, more novel problems. Justice without the state follows a fairly simple principle: justice is the price of keeping the other side from seeking recompense through vengeance. But when the state tries to monopolize the role of vengeance seeker, kings are left with the difficult task of creating uniform standards that can be applied impartially from one case to another. Miller gives a fascinating example23 from the 7the century law-codes of Athelberht:

Lurking in Athelberht’s schedule of payments is a gold mine of information. Consider the  [cost of injuring another’s] hand, which unlike the foot in §69 is not dealt with as a whole, but as the sum of the thumb and fingers: 

§ 54. If one strikes off a thumb, 20 shillings.

1.          If a thumb nail is off, compensate with 3 shillings.
2.          If a person strikes off the shooting-finger, compensate with 9 shillings. 
3.      If a person strikes off the middle finger, compensate with 4 shillings.
4.     If a person strikes off the gold-finger, compensate with 6 shillings.
5.   If a person strikes off the little finger, compensate with 11 shillings. [23]

A Saxon pinky was worth three times a Saxon middle finger, probably because, Miller guesses, the pinky is an important part of a strong grip, while the middle finger’s main uses (even in the Middle Ages) were obscene!

Miller believes that thinking through these cases can help us better understand decisions of justice that we must make today:

Meting and measuring, law and justice, depend – still today, but more starkly then – on balancing what at first sight appear to he apples against oranges, such as you against me, my eye against your hand, my honor against your cow, your daughter against my beached whale, even your faith against mine. 24

But what of modern honor cultures? If lex talionis is so wonderful, how does Miller feel about its most prominent avatars here in the 21st century? Says he:

I sing the virtues of honor cultures long since dead that left literary remains to die for: the Hebrew Bible, the Iliad, Beowulf, the Icelandic sagas. When closer to home in space or time I see not much to admire in urban ghettos or in the Islamicist Middle East, which are sometimes declared to be honor societies in the same breath as they are declared models of dysfunction, as if it were honor and the talion that made them so. But these are not dysfunctional because of their views of honor and justice, but because they deviate in some important ways from the model of the well-functioning talionic society one sees in the sagas, in other heroic literature, or in the ethnographic accounts, say, of the Bedouin.25

He first critiques how the honor and vengeance driven “Code of the Streets” differs from older models:

 The inner city has no old men with property, who have the means therewith to threaten, bribe, and control the aggressive young males who hold their communities captive. These communities are bereft of the class of elders who have the power to keep the violence of the young within responsible, because compensable, limits. In a well-functioning honor society the young men were not allowed to run the show; they did the bidding, within some fairly broad limits, of their elders. And the community was in complete agreement that “unevenmen” were not to he tolerated; either they learned to live by the rule of “even” or else. The pastors and the grandmothers in the inner cities, try heroically as they do, are simply outgunned and lack the resources. 26

He sees a different problem with the modern Middle East:

The Islamicist Middle East introduces a religious ideology that comes close in some of its more extreme versions to devaluing life on earth to the zero point, thereby undoing much of the compensatory force of the talion, whose thrust, recall, was to make life on earth expensive. The problem is not just young men, who are a problem for the structures of social control in any society. The problem is the old men, the clerics and political leaders, who welcome the resource that the young men provide them. The young are thus used not only as human bombs against the enemy but also to gun down the young men of other factions with whom they are competing to blow up the enemy. This can be seen as a way of controlling their young men, too, for at the end of the day they will have gotten rid of quite a few of them. The problem need not be intrinsic to Islam as a general matter. Contrast the Bedouin, whose commitment to Islam was once such that it blended very nicely with the assumptions of their classic honor culture. Will the culture of jihad disrupt their internal equilibrium too? 27

Miller does admit, however, that a world of lex talionis comes at a cost:

Honor societies tended to he small and poor, and the cost of the tough virtue I so admire was in part their poverty; they seldom generated enough surplus to support lordship, let alone expensive governmental institutions. And they made sure that no one did too well for too long because that way lay serious inequality. Remember: they clipped the wings of those who were getting too big for their breeches. And prudent people might keep their talents and ambitions within limits that would prevent eliciting murderous envy from their jealous neighbors. This tough policing of the conditions of rough equality comes at enormous social cost – to innovation, to experimentation, to certain forms of productive ambition. 28

This last point, I think, is the central problem with applying the logic of lex talionis to the modern world. Iceland’s stateless commonwealth  disappeared in the 13th century as wealth and power concentrated in the hands of a few families. Once individual families could raise entire armies to support their claims, retaliation for wrongs committed became impossible, and talk of balance impractical. 29 The bigger the scale of the offense, the more difficult it is to find a proper response. What is the measured response to the sack of a city? Your army gets to sack one of mine? And who is at fault for the city wrongly sacked–the soldiers, their general, their king, or their kingdom?

Talionic systems will hold all relatives of a criminal responsible for his crime under the theory that kin-networks are responsible for policing their family members’ behavior. But how can that possibly scale? To what extent are citizens culpable for their crime of their leaders–and to what extent are their leaders culpable for the crimes of their voters? If a corporation accidentally laces the food it sells with deadly bacteria and an infant dies, then who does the victim’s family turn to for reparation? In the ideal talionic regime they should be able to give the exact same choice that Gudmund provides the Norwegians: you took our child’s life, and now you will pay up as much as you can to prevent us from taking yours. But corporations do not have children. They do not have hands, or feet, or eyes. In a world where corporations are people, “eye for an eye” doesn’t seem possible.