Athena, Holding Your Hair, Whispering In Your Ear

For me a few are enough, one is enough, none is enough. This is not for the many, but for you. We are audience enough for each other.

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This a long-from meditation on revenge, punishment, and the lex talionis.¹ The author is a law professor and historian, who provides a lot of raw material and careful argument about the nature of justice, the commensurability of human bodies, and what we have given up by moving to a money damages regime for civil harms.

My initial hope was that the book would be a fairly detailed legal/historical work dealing with the nuts and bolts of talionic justice systems, but this is not that kind of book. The author's engagement with history and the specifics of the legal systems he deals with is highly selective: he dives in to furnish grace notes or illustrate points, but there's no systematic history here.

But my disappointment was short-lived because the book is elegantly and cleverly written. The author elaborates on his theme in a dazzling variety of modes, cycling rapidly through history, etymology, psychology, moral philosophy, literary criticism, and legal theory. In short, the author is one of the old style of "performing scholars" who know how to write a stylish book that nonetheless deals seriously with serious issues.

But the book has two principal faults: it sometimes prioritizes the amusing over the edifying, and the author sometimes doesn't "show his work" when advancing his arguments (in a way that makes the arguments less convincing).

The easiest example of the first phenomena is the middle third of the book, which is dominated by close readings of two Shakespeare plays (The Merchant of Venice and Hamlet) as well as detours into other Jacobean and Elizabethan revenge drama. The works he analyzes clearly explore themes of talionic justice and revenge and his analysis is interesting, but the extended engagement with fictional works generated in a culture that no longer really practiced the kind of talionic justice under discussion raises more questions than it answers. Why not spend that space engaging with historical, legal, or literary material from practicing talionic cultures? While I found the literary criticism immensely entertaining (I have an immense and abiding fondness for Renaissance drama in general, and revenge plays in particular), those sections taught me very little about the ostensible subject of the book because I cannot be certain how relevant the content really is to actual historical systems of talionic justice.

As to the second problem, the best illustration is in the concluding chapters. The author spends the last portion of the book taking on the question of whether everything is commensurable (what he calls the "everything has a price" position) or whether some things are incommensurable (what he calls the "apples and oranges" position). He develops some very interesting analysis that I personally found convincing as far as it went, but he skips some steps in the argument just when he reaches the hard part.

For example, he spent a fair amount of space demonstrating that all things are potentially commensurable, but almost all of his examples involve comparison of people or things within categories (i.e. we can and do rank the greatest basketball players of all time or the greatest movies ever made), but he seems to either ignore or finesse the much harder questions surrounding commensurability across categories. There is a point after which it is irrational or pointless to compare two things (e.g. "is milk more virtuous than Tuesday?"). Commensurability across categories is clearly not infinite, but the author doesn't even seem to meaningfully acknowledge that there are limits (or he genuinely doesn't believe that any two things are incommensurable, which I view as patently irrational).

So he proves convincingly that things are commensurable within categories, but then just moves on to whether its ethical or desirable to commensurate human lives with money without doing the hard work of showing that money and life are categories that are actually commensurable. I'm sure he would view me as a mushy-headed "apples and oranges" person caught up in vestigial quasi-aristocratic ideas about the "dirtiness" of money (and he'd be right), but I need a significantly more complete argument to be convinced that human life is actually appropriately commensurable in money (in a prospective way, rather than as a "least worst" last resort).

Most depressing, he finishes with a classic law professor maneuever: after voluminous peregrinations and Socratic Judo, he declines to actually answer the fucking question! He builds a detailed long-form argument concerning commensurability and the ethical issues involved, and then takes a sort of wishy-washy non-position about what to do with the practical legal issues stemming from those issues. I nearly chucked the book across the room.

Notwithstanding how mad the conclusion made me, if you're interested in how various cultures have understood revenge and justice, or are just generally interested in legal history this is a really excellent book overall.² Recommended with those qualifications.