»The Law of Payment«; that ancient code of law shared by all mankind, which is written in the vein. Its pithy encapsulation is »an eye for an eye, a tooth for a tooth«. Its function and strength to abide are irrefutable, if distasteful to many of us just at the moment.
The oldest written codes of law are direct inscriptions or basic elaborations of the lex talionis. The Code of Hammurabi repeats it faithfully, and is only concerned with exploring the fine consequences in the new thing that was a city, with contract laws, with slaves and noblemen. The book of Exodus establishes it likewise, and Leviticus confirms it, saying even that »you shall have one and the same law for the citizen and the alien«. Zaleukos, law-giver to Epizephyrian Locris, maker of the oldest written code of the Greeks, made such elaborations to the hereditary law as to stipulate that if someone put out the eye of a one-eyed man, he should pay for it not with one eye, but both — tradition (in the guise of Bengtsson) records that the people of Locris were at first shocked by the apparent harshness of such verdicts, but soon understood the sagacity in them and praised themselves for having chosen such a wise man to write the law, who could plumb the murky waters of justice as though they were a clear crystal, and first of all men give full justice even to the cyclopes. (Another of the innovations of Zaleukos, unnecessary before that time, its loss in ours deeply mourned, was that any man who wanted to alter any letter of the law should go before the assembly of the citizens and slip his neck into a noose; if his suggestion was approved, well and good; but if the assembly voted against his proposal, immediately the rope was pulled and the man hanged. The noose hung over a rafter in the parliament for many decades and the people of Locris lived in happiness and peace, safe from those worst of scourges, the idealist and the progressive.)
Since those elder days we, or rather some few of us, have decided that milder penalties are better than the old simple equality, but even we still describe the lex talionis in terms such as »poetic justice«, »ironic punishment«, »rightful comeuppance«, »just deserts«. This is because reason tells us one thing, but we feel another; in our bones we know that only the law of payment will truly satisfy. Anyone who claims to be a stranger to this thirst is a liar, a damned liar, and probably a politician. There are many truths that the vein and the belly know that are very inconvenient to the little notions of the brain; and I for my part am far from certain that what we think of now as civilization will conquer the instincts in the long run, for it seems in general that the body wins over the mind. The brain and its ideas are made to be fleet and flitting; mayflies dreamed up to deal with a particular snarl in the ever-changing skein of history. The sinews, on the other hand, are lasting, every bit as lasting as the creature Man, perhaps moreso.
Placid writers of violent stories commonly assert that taking revenge will only leave you feeling hollow and unfulfilled; whether this be true or false, we can surely disregard these particular claims as trite moralism, since the men writing them typically give the impression of never having lifted a finger, let alone arms. What is assertible, on the contrary, is that many when wronged will feel the urge to revenge themselves immoderately; if a man in a violent passion is left to his own devices, he will not at all heed the law of payment. So long as we are some distance from being that man, we feel this in our very roots to be unjust; we can also obtain this truth with reason, since it is easy to work out that the result would be a perpetual escalating spiral of ever more monstrous deeds — in modern parlance we call this state »Corsica«. It is for this reason we staff juries with men who are impartial; people endowed with the superior judgment and cool, rational heads conferred by distance to the issue. It is also for this reason that people who are deeply embroiled in anger over some particular cause have latterly taken up jabbering about »privilege« to avoid being judged by those with some distance to the jabberer's situation: like a murdered man's relatives, they will never be satisfied with the verdict of clear-headed and impartial fellows.
What I wish to illustrate with this, is that the reason for our deep dedication to impartiality among those who judge us is not as such a product of modern judicial mildness. It works just as well, makes just as persistent sense, if the law the accused is to be judged against is the old bedrock, the lex talionis. The same is true of most or all of our jurisprudence; when Maimonides said that it were better to acquit a thousand guilty men than put a single innocent man to death — and yes, he was the first to say it — he was discussing the practical application of the Law of Leviticus. If anything, as Maimonides' words hint, these principles become more important, not less, the more severe the punishments. In our day, when the sentence for stealing a crate of hot dogs might be free hot dogs as a ward of the state for a month, who cares if one or two innocent fellows slip through the net? In worse and still-recent days there were plentiful examples of men committing intentionally a crime worth three months' stretch, when the winter chill set in, to get a warm room with blankets, and a pair of boots upon release. But Maimonides knew that death does not easily come undone; and he believed that proof of guilt must be absolute and ironclad, for any slackening of the standard is a slippery slope right down to the caprice of the judge determining life and death. In the same way, the ancient Athenians inaugurated the jury of one's peers — and a vast one, never smaller than two hundred, chosen by lots among all free men — and yet their laws embodied the term draconic.
The first steps away from the primal law were very slight, although significant ones: in Rome, in Athens, among the tribes of Danes and Saxons and in many other places besides, payment in coin was substituted for the exact retaliation. The twelve hallowed tablets of the Law graven in bronze by the early Roman Republicans still retain the ancestral lineaments: »If one has maimed a limb and does not compromise with the injured person, let there be retaliation«. These were the rules that Cicero and Seneca defended as justice against the corruption of time and Man; these were the laws for which a blind goddess was devised as a blazon, and we did not abandon them until the tenacious disciples of perhaps the most brilliant man the world has ever known set in their place, by slow degrees, their substitute, the Law of Mercy, for which the ironic symbol was an instrument of torture.
Now, I am satisfied, as the Epizephyrian Locrians were satisfied, that the law in my time is better and wiser than it was before; but I know the tenacity with which the old ways clung, and as I have already said, I am hardly convinced that the new will win out in the end. For the Law of Mercy was set out two thousand years ago and never perfectly fulfilled until scant decades ago, and it is already beleaguered by far worse things than just proportional penalties, as I have also said: by villains howling for blood, for laxity in the standards of proof of the crimes they take personally. To that anarchy of the mere passions I would far prefer the searching penalties and searching reason of Maimonides; and I permit myself to believe that I am not alone. Perhaps, then, that will be the compromise at last: the once and future law, the law that lives in the heartroot, the lex talionis.