Lex talionis and its discontents in Lebanon
July 18, 2006
If it is said, as it has been said by the EU, that Israel’s current actions in Lebanon are disproportionate, some people (eg, commenters on this thread at crookedtimber) claim instantly to be ignorant as to what “proportionality” could possibly mean. Well, it may not be facetious to point out that there is a classic and well-known definition of proportionality, which goes like this: “an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot”, in the books of Exodus and Deuteronomy. It is known as the lex talionis, and we have, among many others, Calvin’s commentary on it in Harmony of the Law:
[A] just proportion is to be observed, and […] the amount of punishment is to be equally regulated, whether as to a tooth, or an eye, or life itself, so that the compensation should correspond with the injury done […] so that he who has plucked out his brother’s eye, or cut off his hand, or broken his leg, should lose his own eye, or hand, or leg. In fine, for the purpose of preventing all violence, a compensation is to be paid in proportion to the injury.
A just proportion instead of escalating deeds of violence: such is the law, and the germ of this idea has been at the centre of law ever since. (Compare the notion in English law of “reasonable force”, oxymoronic though it may often prove to be in practice.)
Someone reluctant to accept talk of “disproportion” in Israel’s case, however, may perform a further rhetorical move. It is to say: okay, that’s fine for talk of eyes and teeth, but where is the calculus, where are the lookup tables, to enable us to calculate the exact “proportionality” in the complex situation of Lebanon? If you cannot easily say what would be “proportionate”, it is senseless to talk of disproportion.
That argument fails, however. Suppose Fred steals my burger and eats it. He has no other burger of his own that I may take in recompense. So deciding what it is justly proportionate for me or a magistrate to do is not an obvious matter of repaying him with exactly the same action. It will require some thought. However, if I shoot Fred dead in revenge for his theft of my burger, everyone will agree, without the need for further reflection, that my action was disproportionate, to say the very least.
In the case of Israel’s actions in Lebanon, we are enjoined to discuss proportionality or the lack of it in terms of a response to the kidnapping of two Israeli soldiers. Few will suggest that a pedantic notion of the exactly proportionate response, ie to kidnap two members of Hizbollah in return, was the correct deed. Even so, that does not logically prevent a judgment of disproportionality on actions such as bombing power stations and airports, and the foreseeable civilian deaths that ensue.
It is always very important to choose the correct starting place for a narrative of crime and retribution. George W Bush put it simply, as is his wont:
We were headed toward the road map, things looked positive, and terrorists stepped up and kidnapped a soldier, fired rockets into Israel.
Fatally inconvenient to this whole narrative on which arguments about “proportionality” depend, however, is the fact that, the day before the soldiers were snatched, the IDF entered Gaza in a pre-dawn raid to grab – or to “arrest” or “detain”, as it was reported – two civilians, sons of a Hamas member, in Rafah. It is noteworthy, however, that most major news sources did not report this as a “kidnap”, the word they reserved for the snatching the day after of the Israeli soldiers. However, if the soldiers’ abduction was, as Ehud Olmert declared, an “act of war”, then “kidnap” is hardly more appropriate here. Soldiers in war are not kidnapped but captured.
Still, in telling a story, you have to start somewhere. And it is desired that we start with the taking of the soldiers. Gideon Levy writes:
It’s no accident that nobody mentions the day before the attack on the Kerem Shalom fort, when the IDF kidnapped two civilians, a doctor and his brother, from their home in Gaza. The difference between us and them? We kidnapped civilians and they captured a soldier, we are a state and they are a terror organization. How ridiculously pathetic Amos Gilad sounds when he says that the capture of Shalit was “illegitimate and illegal,” unlike when the IDF grabs civilians from their homes.
As Levy notes, in this affair there is no proportionality in definitions, as with any case of “asymmetric warfare”. Rhetorical disproportion thus does its part to enable acts whose characterization as “disproportionate” may itself come to seem a gross euphemism.