'Lex Talionis': Law and Ethics.
Mishpatim (Exodus 21-24 )
While for many people "Torah" is synonymous with "Law," until the 21st chapter of Exodus the Torah has remarkably little discussion of Law. Up to this point, the main focus has been narrative, with occasional detours to introduce individual laws. This Parsha's first three chapters mark a departure. Biblical narrative is left in abeyance, and a series of laws is presented, with little or no connection to the narrative.
One of the most familiar of these laws is often considered the quintessential expression of "Old Testament" values. In short, to-the-point language, we are instructed in matters of conflict that result in physical harm:
Eye for eye, tooth for tooth, hand for hand, foot for foot. (Shmot 21:24)
The accepted translation is "an eye for an eye." A more literal, though not very helpful translation, would be "an eye under an eye." The word tachat literally means "under," but the sentence lacks any decisive meaning when translated this way. This same word appears several times in the Torah in other contexts:
And Adam was once again intimate with his wife and she had a son. And he called his name Shet, 'for God has provided me with other offspring tachat Hevel – in place of Hevel – for he was killed by Kayin. (Bereishit 4:25)
Though the word tachat could be translated literally as "under" or "for," neither of these translations works well in this context. Rather "in place of," "instead of," or "as a replacement for" is clearly the best definition.
Similarly, when Avraham was commanded to bring his son Yitzchak as an offering, at the last minute the heavens opened and an angel called out, bidding him to stop. The text continues:
Avraham lifted his eyes, and behold a ram was entangled in the brush by the horns, and Avraham went and took the ram, and offered it as an offering tachat b'no – in place of his son. (Bereishit 22:13)
Again, the best translation for tachat is 'in place of,' and not "under" or "for." This slight linguistic nuance offers us an opportunity to reexamine our understanding of the oft-quoted phrase, "an eye for an eye." What has made this phrase so popular? Is there an ideological, or even perhaps a theological bias which underlies this translation? 1
The connotation of "an eye for an eye" is that the punishment for removing an eye is that the perpetrator's eye will be put out. We should note that normative Jewish law has never interpreted this pronouncement in this way. Jewish law is unequivocal: no Jewish court ever sanctioned or implemented this method of corporal punishment. Taking an eye from the perpetrator would be an affront to Jewish law, as practiced both in modern and ancient times. No authentic Jewish court ever meted out such punishment.2 Jewish law has always dictated monetary restitution, interpreting the Torah as said having commanded "[the value of an] eye in place of an eye."
If the law is so unequivocal, why is the Torah's wording so equivocal? Why doesn't the Torah simply state that if you knock out an eye, you are required to pay the victim the value of the eye? This is not an unheard of formulation; there are numerous examples of monetary compensation in the Torah. In short, in this verse we are confronted with two distinct problems: What does this phrase mean? And why was it written in this particular way, leaving room for misunderstanding?
Comparing the emerging legal codex of our Parsha with other authoritative codes of law current in the ancient Near East, our problem only worsens. The best known of these is the Code of Hammurabi, which mandated lex talionis, literally prescribing punitive removal of an eye.3
In contrast, Jewish law sees the body as being owned by God; the individual is merely a caretaker. This idea is concisely and clearly expressed in a stunning statement by Rav Sh'neor Zalman of Liadi, in his Shulchan Oruch:
It is forbidden to strike one's fellow, even if he gives permission to strike him, for a person does not own his or her body at all [to allow] striking or embarrassment or to cause pain of any kind, even through denying a particular food or drink.
Clearly, if the body is owned by God and one is forbidden to cause pain of any kind – physical or emotional – the very thought that the Torah would mandate removing an eye as punishment is implausible. Nonetheless, when damage is incurred, when an individual suffers physical harm at the hands of another, the damage to the victim's person or livelihood carries a price.
The Ibn Ezra,4 citing Rav Saadya Gaon, rejects the principle of lex talionis on technical grounds: If one person injures another, impairing but not obliterating his vision, how can a court implement a fair punishment? Would it be reasonable to expect a court of law to precisely mete out punishment, impairing the offender's vision to the precise degree as the damage caused to the victim? Rav Saadya points out that such an interpretation of the Torah is impractical, even impossible, and must therefore be an incorrect understanding of the text. Although his objection is technical and not based on moral concerns or social sensitivities, but solely on the inexact result of this type of punishment in cases of partial blindness, Rav Saadya concludes that the Torah legislated against this behavior in all cases, even when the victim completely lost vision in the damaged eye.5 The weakness of the argument is that in cases of absolute blindness, which ostensibly is the case referred to by the straightforward reading of the Torah text, exact retribution could be measured, so why would it then be rejected?
Thus far, we have addressed the verse in question from several distinct approaches: First, we have examined linguistic considerations: Do the words of the verse, tachat ayin, actually mean "an eye for an eye"? Second, we have posed the moral dilemma inherent in this verse, based on the principle that the human body is the sole property of God, and at no time or in any way is man allowed to do it physical harm. Finally, technical considerations come into the equation, namely the difficulty in implementing fair punishment across the board and in a variety of cases. Yet there remains an additional, more practical consideration: Aside from the barbaric and grotesque elements of removing a body part of the perpetrator, other than perhaps the most base motivation of revenge, how would the punishment indicated by a literal reading of the verse, "an eye for an eye," help the victim? 6
The Rambam, in his halachic magnum opus Yad Hachazaka, puts forth three arguments as to why the verse could not possibly have been intended to be taken literally.7 His first argument is based on tradition: The interpretation of this verse has always been taught from the authoritative Oral Tradition, namely that one pays money for these types of damages. His third argument follows along this same line; he reiterates that this interpretation has its origin at Mount Sinai and was taught and explained to Moshe, and in turn by Moshe, in this manner.
The Rambam's second argument is more helpful to our current discussion, for instead of simply focusing on the words in question, the Rambam considers the broader context of Parshat Mishpatim, bringing to bear verses in an earlier section of the Torah that deal with bodily damages: Our verse, as the Rambam points out, is composed of several parts, including instructions for other cases of physical damage: "An eye tachat an eye, a tooth tachat a tooth, a hand tachat a hand, a leg tachat a leg" – in short, a list of physical wounds. What we might have forgotten, if not for the Rambam's comment, is that the Torah dealt with wounds a few verses earlier:
If men struggle and one man hit his friend with a rock or a fist, and (the victim) does not die, rather he is incapacitated. If he gets up (lives) and walks on his own, the one who struck will be exonerated (of a capital charge); he will pay only damages of lost wages and medical expenses.
Here we clearly see that the "price" of damaging one's friend is financial, not corporal. The word "tachat" used in our verse must necessarily be understood within the context of this adjacent verse, and the idea of financial restitution begins to seem more than interpretation, more than apologetics. The contextual argument is quite compelling, almost unavoidable.
The experienced reader, though, is left somewhat unsettled. This passage from the Yad Hachazaka gnaws at us because it is uncharacteristic. The Rambam is wont to state his opinion without citing any source, without offering supporting arguments. Why did he feel it necessary in this case to put forth three distinct arguments? Occasionally, adding multiple arguments weakens one's position; why did the Rambam feel that in this case, rather than simply stating the law as is his usual style, he needed to prove the law, and with multiple proofs?
A Talmudic passage, with which the Rambam was most certainly familiar, may be the key to this uncharacteristic style. In his third point, the Rambam states that the non-literal interpretation of this verse has been universal in the practice of Jewish law, and every Jewish court from the time of Moshe has been unanimous in discharging obligations for physical damage through financial restitution. While he stated that this has been the opinion followed in practice, he did not state that this opinion has always enjoyed an absolute monopoly in halachic thought. A passage in the Gemara may indicate that there may have been a dissenting opinion:
It was taught: R. Eliezer said: 'Eye for eye' should be understood literally. Literally, you say? Could R. Eliezer be against all those Tannaim [enumerated] above...? R. Ashi therefore said: It means to say that the valuation will be made not of [the eye of] the injured person but of [that of] the offender. (Talmud Bavli Baba Kamma 84a)
The Talmud records the dissenting opinion of Rabbi Eliezer, who contends that "an eye tachat an eye" is to be understood literally – but not in the manner we might expect. The Talmud qualifies and explains his opinion: The perpetrator indeed pays the value of an eye. The question is, the value of whose eye? The value of the victim's eye, or the value of his own eye? Rabbi Eliezer seems to be telling us that this man "deserves" to lose his eye, but the Torah allows him, even requires him, to pay ransom for his own eye. He is not paying the replacement value of the victim's lost eye; he is paying a ransom, the value of his own eye, which should, by all rights, be forfeited. 8
The uncharacteristic style of our passage in the Rambam's Yad Hachazaka, then, imparts a certain hesitation which we may reconcile with the Rambam's appreciation of this dissenting Talmudic opinion. We may gain further insight if we examine the Rambam's philosophical magnum opus, "The Guide for the Perplexed." Here, the Rambam explains the concept of punishment in philosophical terms. The one overarching principle in the Torah's philosophy of punishment is that whatever a person does, he deserves to be punished in an identical way. This should be precise; crime creates punishment.
The punishment of one who sins against his neighbor consists in the general rule that there shall be done unto him exactly as he has done: if he injured anyone physically, he must suffer physically; if he damaged the property of his neighbor, he shall be punished by damage to his own property.
There are spiritual rules of the universe; there is an equal and opposite effect to a person's actions. There is a Divine quid pro quo. A spiritually sophisticated individual should expect Divine retribution for any and all indiscretions. One of the most basic tenets of Judaism is reward and punishment, and such should be man's expectations. We do not do good for the sake of the reward that will follow, rather we believe that there is reward and punishment for all our actions. To elucidate this principle, the Rambam cites these very verses from our Parsha. He then continues:
But the person whose property has been damaged should be ready to resign his claim totally or partly. Only to the murderer we must not be lenient because of the greatness of his crime; and no ransom must be accepted of him. "And the land cannot be cleansed of the blood that is shed therein but by the blood of him that shed it" (Num. 31:33). Hence even if the murdered person continued to live after the attack for an hour or for days, was able to speak and possessed complete consciousness, and if he himself said, "Pardon my murderer, I have pardoned and forgiven him," he must not be obeyed. We must take life for life, and estimate equally the life of a child and that of a grown-up person, of a slave and of a freeman, of a wise man and of a fool. For there is no greater sin than this. And he who mutilated a limb of his neighbor, must himself lose a limb. "As he has caused a blemish in a man, so shall it be done to him again" (Lev. 24:20). You must not raise an objection from our practice of imposing a fine in such cases. For we have proposed to ourselves to give here the reason for the precepts mentioned in the Torah, and not for that which is stated in the Talmud. I have, however, an explanation for the interpretation given in the Talmud, but it will be communicated viva voce (in person, face to face). Injuries that cannot be reproduced exactly in another person, are compensated for by payment; "he will pay only damages of lost wages and medical expenses." (Shmot 21, 19). (Guide for the Perplexed, Book 3 Chapter 41)
Here we have watershed of Jewish philosophy: The Rambam makes a remarkable distinction between what is written in the Torah versus the tradition found in the Talmud; even when contradictory, both are true. The Rambam makes no attempt to reconcile the Talmudic tradition with the Biblical text, explaining that the functions of each are different. In the Guide to the Perplexed, the Rambam explains Jewish philosophy, based on the text of the Torah. On the other hand, when discussing the Law, and the implementation of legal principles, the Rambam forcibly states that our authoritative source for financial restitution is the orally transmitted tradition recorded in the Talmud and universally upheld in Jewish practice. Only when this distinction is made by the Rambam are we able to understand why the language of these Torah verses is less than straightforward, non-legal. The words of the Torah serve a higher purpose than legal formulation. They reflect a philosophical cornerstone of Judaism; while other factors cause the legal implementation to take a slightly different course, the importance of the philosophical statement contained in this verse is preserved by the language used to express it. The words as they appear in the Torah have a value independent of their practical interpretation.9 In this instance they teach the philosophy of the law even when it is not literally implemented.
We might say that while the Rambam does not concur with the opinion of Rabbi Eliezer, he agrees with a certain sentiment expressed by that earlier authority: A person who knocks out someone else's eye deserves to lose his own eye. Nonetheless, no Jewish court, today or at any time in the past, has the authority to rule in this manner, for this is not the law. Jewish courts mete out financial punishments. According to Rabbi Eliezer's line of reasoning, a vestige of the underlying philosophical statement remains when the perpetrator is forced to pay a sum in lieu of his own eye, an eye that he should lose. And while the Rambam's formulation, quoted above, indicates that the sum paid is the value of the victim's eye (and not the perpetrator's eye, as per Rabbi Eliezer), the Rambam also indicates that the victim is asked to compromise, to accept payment in lieu of what should morally be his – his own eye, restored.
The implication of all this is that we are faced with two levels of truth. There is a level of truth that exists and is applied in the Heavenly Court, and this truth is absolute, non-negotiable and unbending. But this is not the way that God asks us to bring His truth to Earth. We are instructed to operate on a different level, a kinder, less exact level, which replaces "fairness" and absolute justice with practicality. Although Divine Justice is not always served, this is an unavoidable byproduct of our very nature, and thus, too, an aspect of God's Will.
On the other hand, the moral message cannot be lost upon us: The guilty party deserves punishment. This insight can help us with a question which is answered with great difficulty by various commentators: If "An eye for an eye" means money, why does the Torah not simply write "pay the value of an eye"? Our answer is now clear: The perpetrator should see that he deserves precise and parallel punishment for each and every indiscretion. Moreover, disengagement of the moral element from the financial restitution should dissuade the perpetrator from thinking that morally he has made full amends by paying the fine levied by the court. Had the Torah not stated the moral culpability of these actions, we would likely find rampant perversions of the spirit of the law: for example, a wealthy individual might do a cold mathematical equation and knock out one or two eyes of his enemies, relying on the financial restitution he will pay to effect moral healing. Indeed, the Talmud is familiar with this sort of attitude:
The scoundrel Hanan, having boxed another man's ear, was brought before R. Huna, who ordered him to go and pay the plaintiff half a zuz. As [Hanan] had a battered zuz he desired to pay the plaintiff the half zuz [which was due] out of it. But as it could not be exchanged, he slapped him again and gave him [the whole zuz]. (Talmud Bavli Baba Kamma 37a)
Hanan's cavalier attitude earned him the moniker "scoundrel": 10 He felt that by paying for a crime he was exonerated, thus he could premeditatedly strike someone, knowing that the monetary "solution" was within his reach, even at his convenience. This was precisely what the Torah wished to avoid. This is the type of moral equivalence created by a price-tag that comes with no moral debt attached. The Rambam's formulation shows us that this is not Judaism's view: While lenience is the reigning principle of the Jewish court system, there is another system of justice which operates on the moral level, and we are enjoined by the words of the verses in Parshat Mishpatim never to forget the standards of Divine truth that we should use as our moral compass.
The cynic11 can look at the discrepancy between the written law and the oral law and claim that the written Torah is barbaric, a remnant of the Dark Ages, while the Rabbis were involved in the evolution of a somewhat more sensitive and socially mature Judaism. Our most basic response to the cynic is that he has misread the text: The Torah never says to put out the perpetrator's eye. The more sophisticated response is that the Written Torah, the Word of God, expresses the Divine perspective, represents a more perfect approach to human existence – an approach of pure values, a philosophy of morality. The Written Torah is not a guide to adjudication; it is a guide to ethics, values, morals and ideals.12 The Oral Law tells how to bring these values into our world, how to adapt Divine considerations to human needs, and how to live by the principles of Divine truth.13
While at times we feel a tension between a reading of the text of the Torah and the Rabbinic interpretation, there is a possibility that we lack the skills and understanding to properly understand the text. The Vilna Gaon explained that the tension between the Written and Oral Torah is merely a product of our superficial efforts to read and understand the text; deep understanding brings harmony. The Written Torah and Oral Torah are two parts of a whole; both express Divine teachings. If at times tension seems to exist, it is caused by our limited understanding of the mechanisms of the spiritual and physical universe. A case in point is the very verse we have been examining. The Gaon illustrates that the written text, which reads, literally, "An eye under (or, below) an eye," and the oral tradition which mandates financial compensation, are really saying the same thing. The key to his understanding is the usage of the word tachat – under. The Hebrew word for eye is ayin, which is spelled – ayin, yud, nun. To unravel this mystery, the Vilna Gaon follows the words of the Torah with unparalleled precision: He literally looks "below" ayin, noting that the letters subsequent to each of the letters of the word ayin spell (kesef) – money! For an eye you pay tachat ayin – under an eye. The letter under an ayin is peh, the letter under yud is kaf, the letter under nun is samech. The written words of Torah include all the information necessary to understand the oral tradition and legal application.14
Although most of us are not blessed with the skills of the Vilna Gaon, the day will come when all the tensions will be resolved and we will be able to clearly grasp the unity of the Torah as the Word of God. God and His compassion and Judgment will be manifest. In the words of the prophet Yeshayahu, on that day we will see God "ayin b'ayin" – eye to eye:
Awake, awake; put on your strength, O Zion; put on your beautiful garments, O Jerusalem, the holy city... For thus says the Lord, 'You have sold yourselves for nothing; and you shall be redeemed without money.' ... How beautiful upon the mountains are the feet of him who brings the news, who announces peace; who brings good news, who announces salvation; who says to Zion, Your God reigns! The voice of your watchmen is heard; together shall they sing; for they shall see eye to eye, when God returns to Zion. (Isaiah 52:1,3,7-8)
- Common Christological bias attempts to contrast the New Testament's so-called doctrine of love and kindness, represented by "turning the other cheek," with "Old" Testament harshness, epitomized by "an eye for an eye." This bias is most clear in the "Sermon on the Mount" where the founder of Christianity says: "It is said of them of old, 'Love your neighbor and hate your enemy,' but I say love your neighbor as yourself." Of course, the "old" Torah actually states (Vayikra 19:18), "Love your neighbor as yourself," without any reference to hating your enemy.
- See the assertion of the Rambam cited below.
- See Hammurabi's Code of Laws, Translated by L. W. King: 196. If a man put out the eye of another man, his eye shall be put out. 197. If he break another man's bone, his bone shall be broken. 198. If he put out the eye of a freed man, or break the bone of a freed man, he shall pay one gold mina. 199. If he put out the eye of a man's slave, or break the bone of a man's slave, he shall pay one-half of its value.
- See Ibn Ezra Shmot 21:24.
- See Rav Yehuda Halevi, Kuzari section 3 subsection 46. There was a certain degree of crosspollination of ideas between Rav Avraham Ibn Ezra and Rav Yehuda Halevi. There was a relationship between the Kuzari and Ibn 6. 6. See above, the response of the Kuzari, as well as the opinion of Rav Ashi, below, for a possible resolution to this problem: Even in cases of total loss of vision, the "value" of the eye of the victim and that of the perpetrator is not necessarily equal.
- See Sanhedrin 58 where Rav Huna had the arm of a particular pugilist amputated, though from the context it does not see as much punishment as self defense, for the man would not stop his attacks upon others: "R. Huna had the hand cut off [of one who was accustomed to strike other people]."
- See Rambam Yad Hachazaka Laws of Khovel U'Mazik, Chapter One, Laws 2,5,6.
- A similar argument is found in Talmud Bavli Baba Kamma 40a : Since it was the life of the owner of a beast that has killed someone that should be redeemed, the payment must surely correspond to the value of the owner's life, and not the value of the beast's victim: For it was taught: [The words] 'Then he shall give for the ransom of his life' [indicate] the value [of the life] of the person killed. But R. Ishmael the son of R. Johanan b. Beroka interprets it to refer to the value [of the life] of the defendant. Now, is this not the point at issue between them, that the Rabbis consider kofer (ransom) to constitute a civil liability whereas R. Ishmael the son of R. Johanan b. Beroka holds kofer to be of the nature of propitiation?"
- A similar idea is found in the commentary of the Recanati on Shmot 21:24; however, this source replaces what the Rambam would call a philosophical understanding, with what the Recanati calls a mystical understanding.
- Most closely translated as "scoundrel" or "wicked." For more on Hanan, see Talmud Bavli Baba Kamma 115a, there the Gemara tells that he may have been a scoundrel – but he wasn't a thief: "But was Hanan the Wicked not notorious...? He was only notorious for wickedness, but for theft he was not notorious at all."
- See Ba'alei Tosfot 21:23, who answers the cynics by quoting the Rambam. Also see Yam Shel Shlomo Bava Kamma 8:1.
- Regarding two levels of judgment see Shla HaKadosh, Shnie Luchot Habrit Mishpatim, Torah Ohr.
- See Yismach Moshe Dvarim 90a.
- Kol Eliyahu Shmot 21:23.