Location of Repository

FINAL DRAFT AMERICAN LAW AND ECONOMICS REVIEW (2001) Francesco Parisi 1 THE GENESIS OF LIABILITY IN ANCIENT LAW

By Francesco Parisi, To Thank Frank Buckley, Robert D. Cooter, Roger D. Congleton, Lewis Kornhauser, Janet L, Richard H. Mcadams, Geoffrey P. Miller, Richard A. Posner, K. Rowley, Paul B. Stephan Iii, Michael Trebilcock, Tom Ulen and Amy Wax

Abstract

ABSTRACT: This paper considers the emergence and evolution of punitive and compensatory remedies in ancient law. I describe how ancient practices of retaliation gradually evolved, through four general phases, into rules requiring victim’s compensation. I suggest that the Biblical lex talionis (“eye for an eye... life for a life”) and similar rules that emerged in other ancient legal systems triggered an important change in the ancient law of wrongs, marking the end of a system of retaliatory justice and the emergence of a system based on victim’s compensation. The paper addresses four related questions: (1) Why was a single limit of 1:1 to talionic penalties introduced across all categories of wrongdoing, replacing older customary practices which had different multipliers according to the circumstances of the case? (2) In the presence of imperfect enforcement, did the 1:1 limit to retaliation result in under-deterrence? (3) Why did the practices of literal talionis rapidly fall into disuse after their written formalization? and (4) Were the kofer and blood-money payments made under a threat of literal retaliation likely to generate over-extraction from the wrongdoer and excessive deterrence? “The first cruelties are exercised for themselves: thence springs the fear of a just revenge, which afterwards produces a new series of cruelties, to obliterate one another.” (Michel de Montaigne, Essays, I. 27) “Thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burnin

Topics: for burning, wound for wound
Year: 2011
OAI identifier: oai:CiteSeerX.psu:10.1.1.194.9739
Provided by: CiteSeerX
Download PDF:
Sorry, we are unable to provide the full text but you may find it at the following location(s):
  • http://citeseerx.ist.psu.edu/v... (external link)
  • http://www.gmu.edu/departments... (external link)
  • Suggested articles


    To submit an update or takedown request for this paper, please submit an Update/Correction/Removal Request.