The "Eye for an Eye" Fallacy

"An eye for an eye will make the whole world blind." - Mahatmas Gandhi

While Gandhi may have been a great social leader and an important historical figure, his knowledge of Jewish thought, as judged by the quotation above, seems to have been limited. It's hard to blame him as this mistaken notion is common coin in the world at large and I doubt that he had a lot of spare time for Talmudic discourse. It’s unfortunate how it misrepresents the Jewish tradition and maligns Judaism's brand of morality.

Though it sounds more like the name of a cartoon villain, Lex Talionis (the Law of Retribution) is the Latin name for the Jewish concept of an "eye for an eye" – the notion that the perpetrator of a crime should receive the exact punishment that he inflicted on another. Many people mistakenly believe that this is a primitive kind of justice from the supposedly angry God of the “Old Testament” that would, in time, be replaced by a more enlightened and tolerant view.

Lex Talionis doesn’t actually mean taking someone's eye, tooth, etc., out as retribution. It means financial retribution.

With the help of the musings of Rabbi Nathan Lopez Cardozo, I hope to show that the notion of an "eye for an eye" never did (and in fact could not possibly ever have) meant that we actually take someone's eye, tooth, etc., out as retribution. Rather, it means financial retribution.

There are two important foundational concepts to bear in mind for this examination. The first is that the Torah comes with its own "decoder ring" – a discreet series of logical inferences that scholars use to interpret the material. These inferences are objective, meaning that the individual can't just gloss over the text and conclude "this is what it means to me." There must be a precedent for the conclusions that are drawn and it must fit within the framework of the Torah's internal logic.

The second is that there is a great deal of subtlety and nuance in the original Hebrew (as there is in any source language). These nuances frequently inform legal decisions and as such are indispensable tools of analysis that are unfortunately lost in any translation.

Here are four ways by which we can know with certainty that Lex Talionis is referring to a monetary compensation:

1. There is an exegetical concept in Jewish law that when one verse is proximate to another that the law in the preceding verse applies to the one following (or vice versa). In this case we are first taught that damaging another's animal requires a monetary fine - so too, in the case of damaging another person, a fine must be paid.
2. Bible scholar Benno Jacob noted that "an eye for an eye" is stated in a context of injuries that are caused by accident (like knocking a hot latte into someone’s lap). Importantly, in the verses that come just before “an eye for an eye,” the Torah is discussing cases of deliberate assault and doesn't legislate an exact retribution; it mandates a monetary fine. As such, it’s illogical to conclude that when someone seriously damages another on purpose we should let him off easy with a fine, but if he did it by accident we should be more stringent and do to him as he did.
3. In Hebrew, the literal meaning of the verse is "an eye instead of an eye" and not "for an eye." This implies that something must be given in place of the lost eye which would not be achieved by putting out the eye of the perpetrator. (See Rabbi Sampson Rafael Hirsch on Exodus 21:27)
4. The text that deals with Lex Talionis (Leviticus 24) also commands that we have "one law." Based on that, the Talmud (Bava Kamma) asks the obvious question of what should be done "if a blind man blinded another man or if a cripple crippled another man?" Would the court be able to exact the exact same retribution (poking the other guy’s eye out, etc.)? Could toothless people roam around bashing other people's teeth out with impunity? The only way to fulfill the "one law" requirement would be to apply a monetary compensation to the toothed and toothless person so that the exact same law would apply to them equally.

Why then doesn’t the text just go ahead and state "he shall make financial restitution in place of the eye"? The answer is that the text is teaching us a moral lesson about what has transpired. In the words of Rabbi Judah Lowe, the Maharal of Prague:

Had the Torah specified 'financial compensation' I would have assumed that just as one who kills his friend's animal and pays damages is free from further punishment, one who injures another and pays damages has no further need to compensate. In truth, however, even though he paid for the injury, he is still obligated to ask for forgiveness... the Torah thus states that were it possible, his hand should also be cut off to show remorse.

In other words, he deserves to have his hand, eye or tooth put out (even though it will not be) and should feel that his debt remains unpaid even after he's made it.

We clearly see that this is far from being the brutal "Bronze Age" justice that Lex Talionis is reputed to represent. It's a compassionate and measured response to an unfortunate occurrence.

We also see that a monetary compensation must have been the intent of the author from the very beginning, since there's no other logical way to read it. There are very many examples along these lines - ones which square much more neatly with the traditional rabbinic method of exegesis and that stand in sharp relief to the incomplete and speculative approach of many contemporary Bible critics.

 

View this post on Instagram

 

A post shared by Aish.com (@aish.com)

To hear Rabbi Jacobs’ ideas on this topic connected to music check out his podcast here.