Commercial Restitution and Lex Talionis (Exodus 21:18-22:15)

The casuistic laws spelled out penalties for offenses, including many relating directly to commerce, especially in the case of liability for loss or injury. The so-called lex talionis, which also appears in Leviticus 24:17-21 and Deuteronomy 19:16-21, is central to the concept of retribution.[1] Literally, the law says to pay with a life for a life that is taken, as well as an eye for an eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, and stripe for stripe (Exod. 21:23-25). The list is notably specific. When Israel’s judges did their work, are we really to believe they applied punishments in this way? Would a plaintiff who was burned due to someone’s negligence really be satisfied to see the offender literally burned to the same degree? Interestingly, in this very part of Exodus, we do not see the lex talionis being applied in this manner. Instead, a man who seriously injures another in a fight must pay for the victim’s lost time and cover his medical expenses (Exod. 21:18-19). The text does not go on to say he must sit still for a public and comparable beating by his former victim. It appears that the lex talionis did not determine the standard penalty for major offenses, but that it set an upper ceiling for damages that could be claimed. Gordon Wenham notes, “In Old Testament times there were no police or public prosecution services, so all prosecution and punishment had to be carried out by the injured party and his family. Thus it would be quite possible for injured parties not to insist on their full rights under the lex talionis, but negotiate a lower settlement or even forgive the offender altogether.”[2] This law may be perceived by some today as savage, but Alec Motyer observed, “When English law hanged a person for stealing a sheep, it was not because the principle of ‘an eye for an eye’ was being practiced but because it had been forgotten.”[3]

This issue of interpreting the lex talionis illustrates that there may be a difference between doing what the Bible literally says and applying what the Bible instructs. Obtaining a biblical solution to our problems will not always be a straightforward matter. Christians must use maturity and discernment, especially in light of Jesus’ teaching to forego the lex talionis by not resisting an evildoer (Matt. 5:38-42). Was he speaking of a personal ethic, or did he expect his followers to apply this principle in business? Does it work better for small offenses than it does for big ones? Those who do evil create victims whom we are bound to defend and protect (Prov. 31:9).

The specific instructions about restitution and penalties for thievery accomplished two aims. First, they made the thief responsible for returning the original owner to his original state or fully compensating him for his loss. Second, they punished and educated the thief by causing him to experience the full pain that he had caused for the victim. These aims can form a Christian basis for the work of civil and criminal law today. Current judicial work operates according to specific statutes and guidelines set by the state. But even so, judges have a measure of freedom to set sentences and penalties. For disputes that are settled out of court, attorneys negotiate to help their clients reach a conclusive agreement. In recent times, a perspective called “restorative justice” has emerged with an emphasis on punishment that restores the victim’s original condition and, to the extent possible, restores the perpetrator as a productive member of society. A full description and assessment of such approaches is beyond our scope here, but we want to note that Scripture has much to offer contemporary systems of justice in this regard.

In business, leaders sometimes must mediate between workers who have serious work-related issues with one another. Deciding the right and fair thing affects not only the ones embroiled in the dispute, it also can affect the whole atmosphere of the organization and even serve to set precedent for how workers may expect to fare in the future. The immediate stakes may be very high. On top of this, when Christians must make these kinds of decisions, onlookers draw conclusions about us as people, as well as the legitimacy of the faith we claim to live by. Clearly, we cannot anticipate every situation (and neither does the book of Exodus). But we do know that God expects us to apply his instructions, and we can be confident that asking God how to love our neighbors as ourselves is the best place to start.