Talion

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Under Talion , alternatively ius talionis or Talionsprinzip , is meant a right figure, according to the between the damage which a victim was added, and the damage which is to be added to the perpetrator, a balance is sought. The expression ius talionis is made up of the Latin ius ' right 'and the Latin talio , retribution' in the sense of compensation. The pre-ancient, ancient oriental expression “an eye for an eye, a tooth for a tooth ” is a special case in which this balance is to be established after a physical injury by inflicting similar damage (“like you to me, so I to you”). This is to be distinguished from the mirror penalty , which is linked to the organs with which the offense was committed, e.g. B. cutting off the thief's hand.

Talion is a sub-case of retribution , which also includes damage to a perpetrator that goes beyond the Talion, and can hardly be distinguished from damages at the time of private punishment, in which the punishment of the perpetrator was awarded to the victim. The Hebrew-Biblical context in which the formula “ eye for eye ” occurs and the Jewish tradition contradict the interpretation as the Talion principle .

Oldest evidence

The Codex Ur-Nammu , a collection of legal propositions of King Ur-Nammu (2112–2095 BC), is the oldest evidence for the writing of the ius talionis . The first law is:

"If a man has committed murder, said man should be killed."

The later Codex of Lipit Ištar von Isín (1934–1923 BC) also applies this basic idea:

"If someone's slave has escaped inside the city and it is proven that he has stayed in someone else's house for a month, he will give slaves for slaves."

- § 12

In the Codex Hammurapi , the special case “an eye for an eye” is usually arranged. In addition, it is difficult to judge in the case of incommensurable relationships between damage and punishment whether it should be a Talion, or whether there is a special preventive intention behind the punishment, which leads to a punishment that exceeds the Talion. So it says in §§ 3, 4:

“If a citizen gives false testimony in court and fails to prove his testimony, if that court is a throat judgment , that citizen will be killed. If he comes to a testimony about grain or money, he must bear the respective penalty of that process. "

Here the victim has not yet suffered any harm, he only threatened him; nevertheless the idea of ​​equilibrium is unmistakable.

"An eye for an eye" appears as a coined formula in the Torah , which dates from 1000 to 500 BC. The main part of the Hebrew Tanakh written down in the 4th century BC , as a legal sentence on:

“(To the right should be) eye for eye , tooth for tooth, hand for hand, foot for foot. Brand for brand, wound for wound, lump for lump, (therefore the perpetrator has to give money for it). "

- Schemot , Mishpatim , Ex 21: 24-25; Ex 21,23f  EU ; Lev 24,19f  EU ; Dtn 19.21f  EU

This legal principle shows an important phase in the expansion and development of (Hebrew) criminal law; private vengeance, family vengeance, and tribal vengeance were thus limited. In addition, the Torah asserts bodily harm in all social classes and genders, i. H. in the poor and the rich, women and men, treated completely equally. The philosopher Philo of Alexandria called this "interpreter and teacher of equality". Researchers often assume that the Talion developed out of the blood revenge associated with nomadic clan law and that it should contain it. The up to then multiple retribution on the clan of the perpetrator, as it is still echoed in the past history in the Torah Gen 4.15  EU , “Therefore, everyone who kills Cain should take sevenfold vengeance”, should be based on the extent of the damage suffered limited and only carried out on the person of the perpetrator. This apparently reacted to rampant blood feuds, in which entire clans sought to wipe each other out for generations. But from the time before the law was written down, no such custom of excessive vengeance has been passed down as historically accomplished. It is doubtful that the biblical passages portray historical legal views that would now be tempered. The excessive revenge may well have always been frowned upon.

An ancient Roman law ( leges regiae ) from the royal era initially allowed the murder ( parricidium ) intentionally committed on a free person to be avenged by the members of the affected family group ( gens ) with blood vengeance. In order to counteract an escalating clan feud, the murderer was only allowed to be killed without prior legal proceedings if the perpetrator was proven beyond doubt. The avenger who contravened this restrictive principle was himself regarded as a parricidas (murderer). In the European Middle Ages and the beginning of the modern era , cruel judicial retribution customs were introduced in many countries , which were wrongly traced back to Old Testament provisions. No case of corporeal Talion is reported in the Hebrew Bible , nor was the ancient Near Eastern Talion intended for the Hebrew laws and regulations. The rabbinical tradition has always taught that it is more a question of financial compensation, which is based on the amount of damage (in descending order: brand> wound> bump).

Social conditions

The principle of identical retribution, or ius talionis , presupposes that actions to be punished in a society are viewed as conflicts between people that can be resolved through a settlement. This institute therefore makes no sense in the case of cultic offenses. Therefore one can assume that there is no place for a ius talionis where there is no place for determining the weight of an offense for religious reasons. There are acephalous societies in Africa, in which the misdeeds represent insults to the earth and the ancestors, who in turn bring evil upon the perpetrator. The measures of the clan, on the other hand, do not aim to achieve any equivalence between repentance and deed, but rather to avert the wrath of the earth and of the ancestors. Even if the law does not serve peace within society but the implementation of a state goal, such a weighting has no function. Hence there is no evidence of the use of a ius talionis in the Old , Middle and New Kingdoms of Egypt. In the old and middle realms the law served the implementation of a national goal, in the new realm the inscrutable advice of the gods was overriding the law.

A further condition is that the offenses are only deliberate acts or pure success criminal law. But in the traditional legal concepts, a mitigation for unintentional acts is the rule, as long as it is not pure damages, which cannot always be separated. The Roman Twelve Tables legislation stipulates that the unintentional killing of a person ( Si telum manu fugit magis quam iecit, arietem subicito ) is atoned for with a contribution in kind. The ram or sheep's head should become the object of vengeance on behalf of those responsible who act negligently.

Laws

In addition to the oldest evidence cited, there are also legal regulations in the European area that take account of the idea of ​​talion.

Around 451 BC The Roman Twelve Tables Law , dated back to the 3rd century BC, regulated the case of serious bodily harm resulting in the loss of an important limb, the perpetrator could be punished with a similar physical retribution if no other compensation was made ( Si membrum rupsit, ni cum eo pacit, talio esto ).

Furthermore, the royal law of 818/819 stipulates that when a person was killed in the church out of self-defense, in addition to the payment of fines for defiling the church with the blood of the victim, a penance was also imposed by the clergy, "the deed that he committed, corresponds. ”In the Lex Frisionum , a repentance is ordered for a killed servant“ according to how he is judged, and his master swear by his oath that he had this price ”. The Talion is made clear by the stipulation that the instigator of a manslaughter does not have to pay a fine if the perpetrator has been caught, but has to tolerate “the feud of the relatives of the killed man” “until he, as he can, their friendship back ”.

The oldest Norwegian law book, the Gulathingslov , has fined most crimes. But there is also a similar reply to the killing:

"If a man kills another on the ship, it is good to take revenge or to throw the manslaughter overboard."

It is noteworthy that the revenge is not due to the relatives here, but to the immediate execution of the ship's crew. Even in the Grágás , vengeance is allowed until the time of the next all thing . Then the killing is to be brought before the Allthing. Revenge may only be carried out by those who are entitled to sue before the Allthing, but everybody in the first twelve hours. By the way, by a court decision regularly peacelessness imposed what a death sentence, which is to be enforced by the prosecution that is equivalent to: On the offender a legal bounty is exposed. No vengeance may be taken on pregnant women, even if they are peaceless. It is noteworthy that a comparison between the perpetrator and the victim's family is forbidden without the permission of the common thing. It is also forbidden to the one who has practiced the ostracism to renounce the slaughter and to let the peacemaker go. In the Uplandslag of the Swedish King Birger , the servant's murder of his master is punished with his death. Otherwise the wergeld applies .

Involved

In early stages of culture, people's ties to clans led to the fact that the perpetrator and victim were not facing each other, but rather the clan of the perpetrator and the clan of the victim. In the Code of Hammurabi found in §§ 210 and 230 for examples. In § 209 it says:

"If a citizen beats a citizen's daughter and thereby causes a miscarriage, he should pay ten sheqels of silver for the fruit of the womb."

Section 210 then continues:

"If this woman dies, a daughter should be killed for him."

In § 229 it is decided:

"If a builder builds a house for a citizen but does not do his job in a solid manner, so that the house he built collapses and he brings about the death of the owner of the house, that builder will be killed."

Section 230 then continues:

"If he brings about the death of a son of the owner of the house, one should kill a son of the builder."

This basic view of the individual's kinship ties can also be demonstrated in statutory Scandinavian law. The Norwegian King Håkon Håkonsson (1217–1263) wrote in the introduction to his Frostathingslov :

“Everyone will know how it has long been a great and bad abuse in this country, that when a man is killed, the relatives of the slain want to choose the one of the family of the killer [to kill him], the one The best thing is even though he neither knew about the killing, nor wanted her, nor helped her, and they do not want to take revenge on the one who killed, although that would be possible. And so the worthless man benefits from his wickedness and his misfortune, and the innocent loses his prudence and manly excellence. And so many have suffered a great loss of sex in this way, and we have lost the best of our people in the country. And that is why we define this as a thing without admission of a penance and with the confiscation of the entire property of everyone who takes revenge on someone other than the one who kills or has killed. "

The Norwegian King Magnus Håkonsson also adopted this principle in his land law, which replaced the individual Gau rights :

"[Work of envy is] when someone takes revenge on someone other than the perpetrator or instigator."

Already in gulating there was Sippenbußen and the legal concept of "Ringbußgemeinschaft" and "Nasenbußgemeinschaft" of the old Norse law shows this embeddedness: The Ringbußgemeinschaft was the group of closest relatives on the father side and the Nasenbußgemeinschaft on the dam's side, who were also entitled to per according to kinship, to receive repentance from the perpetrator. The relatives of the perpetrator were also liable to pay a fine. In Frostathingslov it says:

“The killer or the son of the killer should atone for the son of the killed one weighed Ertog and thirteen weighed Ores in the main ring. The father of the killer is just as much to the father of the dead. The brother of the killer should atone for the brother of the dead ten weighted ore [and so on up to the cousins' sons] "

The same phenomenon can be found in the older Westgötalag . After the Uplandslag of King Birger of Sweden, the hundred, that is, the village community, was liable for the manslaughter penalty if the manslaughter could not be identified. The same notion can be found in medieval Russia, where the lowest level of the village community, called werew , had to stand up for the actions of its members. In § 23 Codex Hammurapi the city and the ruler are liable for the damage suffered by a resident as a result of robbery if the robber was not caught.

The Koran also seems to know of this integration when it states in Sura 2 : 178:

"Oh you, who believe! You are prescribed retribution in case of manslaughter: a suitor for a free man, a slave for a slave and a woman for a woman! "

However, the Qur'an also emphasizes that no one bears “another's burden” ( Sura 53 : 36–38).

In Israelite law, the Torah restricted this previously practiced kin-like connection between the perpetrator and the victim clan: Dtn 24.16  EU anchors the individual attributability of an offense and thus marks legal progress :

“Fathers should not be killed for sons and not sons for fathers. Everyone should be killed for his own wrong. "

The Talion itself

As stated earlier, it is difficult to determine whether harm and punishment should be balanced in a legal system. This only becomes clear if theoretical and programmatic statements around the legal rule can be found that prove that the damage that was dictated to the perpetrator was actually intended to be a talion. Even if it is ordered that the sacrificial side could determine the penance, other purposes than the Talion are not evident. This can be assumed above all if the execution of a corporal punishment could be averted by paying a fine. Measures of penance for injuries to the injured also give a clue for the application of the Talion. Other contexts also allow such a conclusion, e.g. B. if in § 209 Codex Hammurapi, already mentioned in the previous section, it can be concluded from the killing of the daughter of the perpetrator in the event of the death of the victim that the ten sheqels of silver should represent an equivalence for the womb, if only this dies. Since the establishment of the truth in the process was based almost exclusively on testimony, the false accusation was one of the neuralgic points of the administration of justice . Here the ius talionis is therefore already applied to endangering the wrongly accused, literally in the Old Testament :

"So you should do him what he planned to do to his brother."

- Dtn 19.19  EU

In the Codex Lipit Ištar , the false accuser is said to suffer the punishment that the accused would have had to bear, and the slander of a virgin that she was no longer a virgin was valued at 10 silver sheqels.

In some cases, especially in the area of ​​sexual criminal law, a balance is not to be assumed between harm and penance, but between the degree of social disapproval and penance. Thus determine the laws of Æthelberhts of Kent :

"If the king drinks in someone's apartment and someone commits something wrong there, he atone for double penance."

The talion was not always set by a judge. Sometimes they were "sensible men":

“If someone wounds a man in the nose, a disfigurement fee should be paid, and so everywhere where hair or clothing does not cover the damage. And the distortion fee should be as much as impartial men estimate. "

There are many examples according to which the injured person was allowed to arrest the Talion himself under witnesses. However, disproportionate claims are rarely reported. Apparently the injured man knew in what framework he had to move, and an unreasonable demand would have destroyed his honor within the community, or the desired subsequent peace would not have come about. However, tariffs for certain violations are often mentioned in the legal books, which also provided the framework for similar other violations. Otherwise, Wergeld seems to have been the talion for a lifetime. In the Edictus Rothari , wergeld is required for killing a free person. But if the victim was the master of the perpetrator, the death penalty followed. With regard to the victim, the death penalty and wergeld corresponded as Talion. A similar relation can be found in the Lex Gundobada of King Gundobad of Burgundy (King from 480 to 516), if wergeld is required for killing a royal estate manager, the perpetrator is, however, a servant and the death penalty is to be imposed. In the case of husbands, the Lombards counted men more than women. If the man killed his wife, he had to pay 1200 shillings , half to the king, half to the relatives, as for the killing of a strange woman, so that the compensation amount was only 600 shillings. If the woman killed her husband, she was punished with death. A notable rule of talion for damages is contained in the Kent Law Æthelberhts :

"If a suitor is with a free man's wife, he'll buy her with her money and buy another woman from his own fortune and bring her home."

There is also a reverse breakthrough in the Talion: in the Uplandlag , a maximum fine of forty marks is determined.

Literature cited

  • Franz Beyerle (ed.): The laws of the Lombards (= Germanic rights. Vol. 3, ZDB -ID 1029124-6 ). Böhlau, Weimar 1947.
  • Franz Beyerle (Hrsg.): Laws of the Burgundy (= Germanic rights. Vol. 10). Böhlau, Weimar 1936.
  • Karl August Eckhardt : The laws of the Carolingian empire. 714-911. Volume 1: Salian and Ribuarian Franks. (= Germanic rights. Vol. 2, 1). Böhlau, Weimar 1934.
  • Andreas Heusler : Icelandic law. The gray goose (= Germanic rights. Vol. 9). Böhlau, Weimar 1937 (here “Grágás”);
  • Wolfgang Helck : Nature, origin and development of ancient Egyptian "law". In: Wolfgang Fikentscher , Herbert Franke , Oskar Köhler (Eds.): Origin and Change of Legal Traditions (= publications of the Institute for Historical Anthropology, Vol. 2). Alber, Freiburg (Breisgau) 1980, ISBN 3-495-47423-4 , pp. 303-324.
  • Max Kaser : Roman private law. 2nd Edition. CH Beck, Munich / Würzburg 1971, ISBN 3-406-01406-2 , § 39, pp. 147-148, § 41, pp. 155-157.
  • Wolfgang Kunkel , Martin Schermaier : Roman legal history . 13th edition, Böhlau, Cologne a. a. 2001, ISBN 978-3-8252-2225-3 , pp. 34, 43.
  • Rudolf Meißner (translator): Norwegian law. The legal book of Frostothings (= Germanic rights. Vol. 4). Böhlau, Weimar 1939.
  • Rudolf Meißner (translator): Norwegian law. The legal book of the gulathing (= Germanic rights. Vol. 6). Böhlau, Weimar 1935.
  • Rudolf Meißner (translator): Land law of King Magnus Hakonarson (= Germanic rights. North Germanic law. NF Bd. 2, ZDB -ID 634842-7 ). Böhlau, Weimar 1941.
  • Felix Niedner (translator): The story of the skald Egil (= Thule. Vol. 3, ZDB -ID 516164-2 ). Diederichs, Düsseldorf a. a. 1963.
  • Eckart Otto : The story of the Talion. In: Eckart Otto: Continuum and Proprium. Studies on the social and legal history of the Old Orient and the Old Testament ; Wiesbaden 1996, pp. 224-245.
  • Reinhold Schmid (Hrsg.): The laws of the Anglo-Saxons. In the original language with translation, explanations and an antiquarian glossary. 2nd, completely revised and increased edition. Brockhaus, Leipzig 1858.
  • Rüdiger Schott : African legal traditions of the Bulsa in northern Ghana. In: Wolfgang Fikentscher, Herbert Franke, Oskar Köhler (Eds.): Origin and Change of Legal Traditions (= publications of the Institute for Historical Anthropology, Vol. 2). Alber, Freiburg (Breisgau) 1980, ISBN 3-495-47423-4 , pp. 265-301.
  • Claudius von Schwerin: Swedish rights. Older Westgötalag, Uplandslag (= Germanic rights. Vol. 7). Böhlau, Weimar 1935.

Web links

Wiktionary: Talion  - explanations of meanings, word origins, synonyms, translations
Wiktionary: Talion principle  - explanations of meanings, word origins, synonyms, translations

Footnotes

  1. ↑ Duden | Talion | Spelling, meaning, definition, origin. Retrieved April 11, 2018 .
  2. ↑ a b c d “(...) cruel judicial retribution customs were introduced in many European countries in the Middle Ages, and they were assumed (...) to correspond to biblical provisions. In reality, however, no case of a physical Talion is reported in the Bible, nor was such a Talion the intention of the biblical law, as we know today from the knowledge of older ancient oriental legal codes (...) The rabbinical claim that this is about financial compensation , not about literal physical talion, was therefore (...) correct. ”quoted from: W. Gunther Plaut (ed.), Annette Böckler (author. transl. and edit.), Walter Homolka (insert.): Schemot = Shemot = Exodus. , 2nd edition, 1st edition of the special edition, Gütersloher Verlagshaus, Gütersloh 2008, ISBN 978-3-579-05493-3 , p. 243 ff.
  3. ↑ §§ 196 ff. The chronological order does not reveal any legal development. Because the respective legal collections come from different regions and legal traditions. Otto: history ; P. 229.
  4. ↑ Note in brackets after Moses Mendelssohn .
  5. ↑ Philon von Alexandria, Über die Einzelgesetze III , p. 33 ff., Quoted from: W. Gunther Plaut (ed.), Annette Böckler (author. Transl. And edit.), Walter Homolka (insert.): Schemot = Shemot = Exodus ., 2nd edition, 1st edition of the special edition, Gütersloher Verlagshaus, Gütersloh 2008, ISBN 978-3-579-05493-3 , p. 243 ff.
  6. ↑ leges regiae: qui hominem liberum dolo sciens morti duit, parricidas esto.
  7. ↑ Schott, p. 275
  8. ↑ Helck, pp. 316, 323 ff.
  9. ↑ XII tab. 8.24: If the weapon has escaped the hand more than someone has thrown it, the thrower shall pay a ram as a penalty.
  10. ↑ XII tab. 8.2: If someone has injured a member of another and does not agree with him, like for like should be rewarded.
  11. ↑ Eckhardt p. 113.
  12. ↑ Eckhardt III. P. 67.
  13. ↑ Gulathingslov No. 171.
  14. ↑ Grágás p. 135.
  15. ↑ Grágás p. 156
  16. ↑ Gágás p. 159
  17. ↑ Grágás p. 170 f.
  18. ↑ von Schwerin, Uplandslag No. 15.
  19. ↑ Landrecht, Title IV No. 4.
  20. ↑ In the 6th chapter on male holiness.
  21. ↑ chap. 6 of the Frostathingslov.
  22. ↑ chap. 6 No. 41
  23. ↑ von Schwerin, p. 13
  24. ^ Von Schwerin, Upplandslag No. 8.
  25. ↑ Ex 21,22-25  EU
  26. ↑ § 17
  27. ↑ § 33
  28. ↑ Aethelbirht's Laws, chap. 1 No. 3 = Schmid p. 3.
  29. ↑ Frostathingslov IV No. 45.
  30. ↑ Ex 21,22  EU : "If men fight and hit a pregnant woman, so that she has a miscarriage without causing further damage, then the perpetrator should pay a fine that the husband of the woman imposes on him."
  31. ↑ In the Egils saga Egill Skallagrímsson made a decision on a matter that concerned his son Þorstein, which banned his opponent from his district. This was criticized as too harsh and led to the argument continuing. The story of the skald Egil , p. 251 ff.
  32. ↑ A cut off thumb or a cut off nose 12 ore, half a mark on the next finger, if the mustache lip comes off with 3 marks, etc .; Frostathingslov IV No. 45.
  33. ↑ Rotharis Code of Law No. 13.
  34. ↑ Lex Gundobada No. 50.
  35. ↑ Rotharis Code of Law No. 200, 203.
  36. ↑ Aethelbirht's Laws No. 31 = Schmid p. 5
  37. ↑ No. 29, § 4: Whenever the wound comes to forty marks, no one has the right to complain about more wounds than one. If he has more wounds than one, they cannot be repaid.