“The first stage in the evolution of law is personal revenge. (…) This principle of revenge persists throughout the history of law: it appears in the Lex Talionis* — or Law of Retaliation — embodied in Roman Law; it plays a large rôle in the Code of Hammurabi, and in the “Mosaic” demand of “an eye for an eye and a tooth for a tooth”; and it lurks behind most legal punishments even in our day.” Will Durant, The Story of Civilization, Volume 1

As barbaric as the Lex Talionis was, it was actually an advance on older customs, because it included an element of proportionality. “Eye for an eye” is much sounder than “a head for an eye” or “the eyes of your entire family or tribe for an eye.”

Such proportionality helps make violence self-containing and prevents it from spiraling out of control into an endless cycle of collective retribution. In a word, it prevents family/tribal/national feuds. Indeed every modern war against whole nations would have been precluded under a thoroughgoing application of this “savage” custom.

Durant continues:

“The second step toward law and civilization in the treatment of crime was the substitution of damages for revenge.”

This indeed was a great step for civilization. If someone knocks your eye out, and you respond in kind, you can’t be “made whole” by simply popping the aggressor’s eye into your own eye socket. The only benefit you would get from taking his eye would be satisfaction of your desire for vengeance. But that feeling is probably fleeting and does little to make your life easier: to make up for the difficulty you face from missing an eye. However, a stream of money payments from your assailant could actually help make up for your diminished productivity and earning power.

As Murray Rothbard argued, restitution should be the primary goal of any system of justice.

Again, Durant:

“In many cases disputes were settled by a public contest between the parties, varying in bloodiness from a harmless boxing-match — as among the wise Eskimos — to a duel to the death. Frequently the primitive mind resorted to an ordeal not so much on the medieval theory that a deity would reveal the culprit as in the hope that the ordeal, however unjust, would end a feud that might otherwise embroil the tribe for generations.”

Peter Leeson also sees a rational basis for ordeals. In his abstract for his paper on ordeals, he wrote:

“I argue that medieval judicial ordeals accurately assigned accused criminals’ guilt and innocence. They did this by leveraging a medieval superstition called iudicium Dei. According to that superstition, God condemned the guilty and exonerated the innocent through clergy conducted physical tests. Medieval citizens’ belief in iudicium Dei created a separating equilibrium in which only innocent defendants were willing to undergo ordeals. Conditional on observing a defendant’s willingness to do so, the administering priest knew he was innocent and manipulated the ordeal to find this. My theory explains the peculiar puzzle of ordeals: trials of fire and water that should’ve condemned most persons who underwent them did the reverse. They exonerated these persons instead. Boiling water rarely boiled persons who plunged their arms in it. Burning iron rarely burned persons who carried it. Ordeal outcomes were miraculous. But they were miracles of mechanism design.”

Durant then wrote:

“The fourth advance in the growth of law was the assumption, by the chief or the state, of the obligation to prevent and punish wrongs.

This was actually no advance at all, but a retrogression. As Murray Rothbard wrote in The Ethics of Liberty:

“In fact, in the Middle Ages generally, restitution to the victim was the dominant concept of punishment; only as the State grew more powerful did the governmental authorities encroach ever more into the repayment process, increasingly confiscating a greater proportion of the criminal’s property for themselves, and leaving less and less to the unfortunate victim. Indeed, as the emphasis shifted from restitution to the victim, from compensation by the criminal to his victim, to punishment for alleged crimes committed “against the State,” the punishments exacted by the State became more and more severe.”

Durant noted that:

It is but a step from settling disputes and punishing offenses to making some effort to prevent them. So the chief becomes not merely a judge but a lawgiver…

This too was a retrogression, because it opened the Pandora’s Box of busybody government laws encroaching on individual rights in the name of proactively protecting them.