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Message: <blockquote data-quote="Celebrim" data-source="post: 6735751" data-attributes="member: 4937">The law of retaliation limits retaliation.  Pretty much any system that tries to make the punishment fit the crime is being influenced by it.I wouldn't describe that necessarily as Lex Talionis.  Does the punishment fit the crime?  In what sense is there equal retribution?  I mean, I understand that there is a broken contract here, and that a child - particularly in a world without sanitation or antibiotics - has been endangered by the breaking of the contract.  But, even then it would seem to me this is a case were Lex Talionis is not being strictly applied, rather than one where it is.  Rather, the example you cite strikes me as being something not intrinsically wrong, but prohibited where the act was considered so distasteful that a deterrence theory of justice was applied.  That is to say, the crime was to be punished in such a horrific manner, that the hope was that no one entrusted with that (sacred?) duty would so lightly or neglectfully abandon it.  The actual crimes here - the wrongness incurred - appear to do with theft, or breach of contract, or child endangerment.  As is usual with very old legal codes, its sometimes hard to understand the exact portion of the crime that so offended the society so as to know what they were trying to prohibit, particularly when there aren't a lot of comparable modern practices.  But whatever was going on, under a strict reading of "eye for an eye" under this crime no one had been literally deprived of a breast (though perhaps, the society felt that the child literally had, in which case the society seems to not grasp the difference between ownership and usury).  If I was trying to imagine a primitive subsistence society literally trying to match the punishment to what I presume the crime to be (admitting I don't actually know what the writer's of the law saw the crime to be) it might be something like being made to swallow populated water, or allowing the injured party to designate a single person to throw a single stone at the person.  More likely, if the actual crime here is breach of a commercial contract, a fine seems to be the actual sort of thing "eye for an eye" specifies.  If you drew the conclusion that that was what I was saying, then I apologize for being unclear.  Obviously, Western medieval law is heavily influenced by both Judaic law and Roman law, and Salic law likewise contained the core concept of limiting the punishment to the crime.  However, even in this case, there are plenty of examples - such as petty theft - where the crime was often specified as branding or death, where evidently the people at the time thought the punishment fit the crime but by a strict reading of either a law of retaliation or a law of restitution it doesn't seem to be applied.  And of course, just as there are now, there where many examples of societies with legal norms of punishment that were even more harsh.Then again, our norms might strike them as excessively harsh.  Which would you rather suffer, incarceration or a flogging?  I'm inclined to think that it's a bit of a tossup, and arguably a criminal record serves the same purpose as a brand does.   Are we getting more merciful, or are we just getting better at documenting a person's identity?  Are we getting more merciful, or are we just getting more squeamish?  Are we getting more merciful, or does it just cost us less to be ignore people? It's appreciated.  I like being made to think.  And the presence of a bit of Latin is never unwelcome.</blockquote>

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