Medieval Iceland Must Have Had Some Economists
Over at Salon, also known as the land of the most annoying advertising model ever, is a fascinating interview with law professor William Ian Miller. His new book,”An Eye for an Eye”, describes talionic law, a legal system most famously described by Exodus 21:22-25:
“When men have a fight and hurt a pregnant woman, so that she suffers a miscarriage, but no further injury, the guilty one shall be fined as much as the woman’s husband demands of him, and he shall pay in the presence of the judges. But if injury ensues, you shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe.”
As it is not the topic at hand, we will leave aside for the moment the fact that this passage clearly prescribes different standards of legal protection for the born and unborn.
Miller explains that talionic law was not a criminal system, but rather a tort system that assigned the property rights equal to the tort to the victim of the tort. From the interview:
Your book argues that we often use the term “eye for an eye” to describe a harsh kind of justice from the past. But talionic societies could be said to put a higher value on human life and the human body than we do. They were much more committed to finding the exact worth of body parts and lives. So, let’s say you poke out my eye…Then, instantly, my eye becomes yours. To get the value exactly right, we say an eye is worth an eye. You have a right to my eye. Now you can say to me, “I’m going to take your eye.” Then I’m going to say, “Hey, what would you be willing to accept instead?” It becomes an initial bargaining position.
If you want victims to be more highly valued and you want real, adequate compensation, this is how to do it. Now if I offer you what some lousy insurance company says your eye is worth — say, $100,000 — you’ll say, “No way! I would never have let you take my eye for that.” Instead, you can be sure I’ll put the same value on not losing my eye that you would have put on yours, and I will pay you that amount to keep my own eye. How about $5 million? Let’s start there. And we’ll bargain it out.
The efficiency is incredible. Rather than having lawyers argue before a judge or jury as to the extent of harm caused by a tort, they used a system that, by simply assigning property rights, accurately determines the proper value of the restitution. Lower transaction costs and efficient allocation– Coase would be proud.
Some of Miller’s comments, such as his disparagement of what he sees as modern society’s inability to accurately value the lives of individuals, aren’t entirely convincing. Overall, however, the interview is worth reading. The insight offered into the economics of law through his comparison of the modern tort system with the talion is worth Salon’s Site Pass system.