Iyunim - Weekly insights on the Parasha with commentaries by Nehama Leibovitz, za"l
Eye for Eye
Few are the verses from the Bible which have been so frequently and widely misunderstood by Jew and non-Jew as verse 24:20, from which our title is taken. This misconception has transformed our text into a symbol, the embodiment of vengeance at its cruelest level. One who wishes to express his opposition to forgiveness, concession, and compensation, insisting instead on his pound of flesh, on retaliation of the most brutal and painful kind, resorts to the phrase: “Eye for eye,” a formula which conjures up a vision of hacked limbs and gouged eyes. Even he who is familiar with the traditional Rabbinical interpretation of our text, “eye for eye,” i.e., monetary compensation, does not rule out the possibility of this being merely an apologetical explanation, a later toning down of ancient barbarity, humanization of the severity of the Torah by subsequent generations. But this is not the case. On the contrary, our Sages and commentators adduce many and varied proofs indicating that the plain sense of the text can be no other than monetary compensation. We shall cite here several of these proofs. Let us first read the phrase in its context. It occurs twice in the Scriptures:
The second occasion is in our Parasha :
The Talmud (Bava Kamma 83b-84a) adduces a whole series of arguments providing that these verse must allude to monetary compensation for the injury inflicted. Here are two of them:
These two arguments are based on the wording of the text disproving the literal interpretation of the grounds that lex talionis cannot be practically implemented (R. Shimon b. Yohai) or that its execution is not compatible with the maintaining of any sort of equivalence between the crime and the punishment (The school of Hezekiah), while the expression “eye for eye” by all accounts indicates an equitable correspondence between the deed and its recompense. Saadya Gaon resorted to these same arguments in his polemics twice in his Pentateuchal commentary – in Exodus and in our Parasha. Let us study both carefully. In Ex. 21:24 he states:
To sum up: We cannot give an adequate explanation o the precepts of the Torah without relying on the words of our Sages. For just as we received the written Torah from our forefathers, so we received the oral Torah – there is not difference between them. The Karaite attacked the Rabbinic interpretation on two counts, first from the wording of the text. The Gaon demonstrated that the two phrases do not necessarily bear out the Karaite interpretation. (Benno Jacob notes that the case of Adoni-Bezek – As I have done, so God has requited me (Judges 1:7) is no proof to the contrary, for there he uses a different verb in each clause of the phrase, and is therefore not comparable to our verse). The proof from Samson is the clearest indication that the phraseology when… implies an equivalent or analogous, but not identical punishment. The Karaite then forsook the argument from the wording of the text and attacked the Rabbinical interpretation from the point of view of feasibility of its implementation. Here he evidently did not realize that by doing so he was advancing the objection that could be raised against all judicial fines. Just as he asked: What if the attacker is a poor man, so he could have asked: What if any defendant on whom a fine was imposed was a poor man? He thus played into R. Saadya’s hands by showing him that the same flaw in execution that could be pointed out in the monetary interpretation could be objected in the literal one, bringing in R. Shimon b. Yohai’s argument. The other context where Ibn Ezra cites Saadya Gaon’s polemic with Ben Zuta is in our Parasha (24:19):
Here Saadya Gaon resorts to the argument of the school of Hezekia – Eye for eye, and not a life and an eye for an eye. But the Talmud does not confine itself to purely technical arguments that rule out the feasibility of executing lex talionis. It adduces other texts too, one of which (cited also by Benno Jacob) we cite here: Scripture states: “you shall take no ransom for the life of a murderer who is guilty of death” (Num. 35:31), implying that for the life of a murderer you may take no ransom, but you may take ransom Bava Kamma for the main organs of the human body which do not grow back (Bava kamma 83b). The wording of the text, “who is guilty of death” that there are other crimes not punishable by death. If we study the context we shall find it implied that a guilt other than capital offense can only be that a person who maim another. If the text therefore states that the ransom may not be taken for the murderer, if follows that where capital punishment is not involved, ransom should be taken. This is one of the arguments advanced by Maimonides in Hilkhot Hovel uMazik 1, 3-6:
Whence that is the statement “eye for eye” monetary compensation is indicated? Since it is stated: bruise for bruise, and we have the explicit ruling thereon: If a man strikes his fellow with a stone or his fist…he shall only pay for the loss of time and have him thoroughly healed (ex. 21:18-19) indicating that the “for” in bruise for bruise refers to payment, and the same applies to the “for” in the other limbs. Though all these things would seem implicit in the wording of the Written law, transmitted directly by Moses from Mount Sinai, all come under the heading of a practical ruling handed down to us. So our ancestors saw matters judged in the court of Joshua, of Samuel the Ramathite and every court that has existed since the day of Moses until now. The first proof advanced by Maimonides is the last one we cited from the Talmud, based on Numbers 35:31. But we may observe that he does not regard it as convincing, since he explicitly asks immediately afterwards: Whence that monetary compensation is indicated? Lehem Mishne, one of Maimonides’ commentators, indeed queries this approach, asking:
He answers that from the first text, it may only be proved that ransom may be taken from maiming, but not—since it is an indirect proof from a negative statement – that it must be taken, and that counter-maiming is ruled out. Maimonides therefore goes on to demonstrate that there are no two options and that “eye for eye” can mean monetary compensation only. His proof is indeed convincing, and we shall revert to it later. Maimonides, however, was not content with it. But his conclusive argument is that such is our tradition as handed down by word of mouth from one generation to the next in every court of law that existed from the days of Moses onwards. We cite here Rabbi A.Y. Kook’s observation:
However, it should be noted that R. Solomon Luria, in his Yam shel Shelomo (at the beginning of Chapter 8 of Bava Kamma takes issue with Maimonides and regards the interpretation of the written text as conclusive, and the plain sense of it bears it out. For if “eye for eye” were to be taken literally, bruise for bruise would have to be understood likewise. Yet this is ruled out since the Torah states explicitly, “he shall only pay for the loss of time and have him thoroughly healed” (Ex. 21:19). Thus, monetary compensation is due for bodily harm caused. Benno Jacob also goes to this chapter for additional proof, citing the subject arrangement of the verses 18-22. They all deal with bodily harm, and are divided into two sections, the first of which is further subdivided as follows:
Now where is “eye for eye” or “tooth for tooth” mentioned in the text? Surely in connection with inadvertent action, whereas in the case of deliberate maiming, we are explicitly told (v. 19) that only loss of time and medical care has to be paid for. Were “eye for eye” to be taken literally, the penalty for inadvertent maiming would be greater than that for deliberate one. But Benno Jacob learns the monetary implications of “eye for eye” form the very wording of our text, in contrast to most of our commentators who maintain that the literal wording does indicate that the actual cutting off of a limb is envisaged, but that we must resort to exegesis. B. Jacob adduces proof from the word thou shalt give (Ex. 21:23), indicating that we take nothing from the smiter but that he is compelled to give, which can only mean compensation. Had the text meant counter-maiming, it would not have employed the term give which implies getting or taking something from the other party. Had the text meant the removal of a limb, what in such a case would the victim have received in his hand, so to speak, from the smiter? But his main proof is from the word “for”. He shows that the fact that “for” implies monetary equivalence rather than identity is proved not only by some texts, as: He shall let him go free (on account of) his eye Ex. 21:26or It cannot be gotten for gold, neither shall silver be weighed for the price thereof, Job 28:15 But that in his view in no text does “for” ever imply the identity of the exchange. On the contrary, “for” has an entirely different usage. A is called on to give, do, or suffer instead of B, because B cannot give, do, or suffer that same thing. “For” never implies that A has to give or suffer anything because B has given or suffered the identical thing. This, according to Benno Jacob, is the source of all the misunderstanding of our text. This may be proved from the Biblical succession of kings. One king dies and another rules in his stead. Because his predecessor is no longer capable of ruling, his successor comes along, and exercises his functions in place of him. Or, Avraham offers up the ram for a burnt-offering in place of his son. Yitzhak was not offered up, so the ram came as a substitute. Not that the ram was offered up too, just because Yitzhak had been offered up, which would be the interpretation if we followed the approach mistakenly adopted by those who take “eye for eye” literally. The same point emerges from Judah’s words in Genesis 44:33:
In other words, let not Benjamin be the slave, but I shall be the slave instead of him. there are many such examples. The one most appropriate to our context is Joshua 2:14: “Our lives—for yours,” i.e., if you will not divulge our whereabouts and betray us, and you are caught, we shall give ourselves up to be killed and you shall not be killed. This is the force of the word “for” – instead of the suffering or the death of the other. Accordingly. “eye for eye” implies that he who plucks out the eye of his fellow shall give something to the victim which will come in place of that eye which can no longer perform its functions, and that is monetary compensation. In this respect, Benno Jacob takes issue with most commentators, both ancient and modern, Jewish and non-Jewish, who maintain that the text does literally mean the actual maiming of the smiter. According to Jacob, the literal wording of the text can mean nothing else but monetary compensation. But we may ask, as does Maharal of Prague and many others in his Gur Arye supercommentary on Rashi, why, if money is indeed indicated, does not the text state explicitly, he shall pay him the value of his hand or blemish? He answers:
This basic difference between causing bodily harm to man and animal is outlined by Maimonides in Hilkhot Hovel uMazik 4, 9-11:
In other words, a man cannot dispose of his limbs in the same way as he can dispose of his property since his limbs, his body, are not under his authority. He is not master of his body, but He to Whom both body and soul belong is Master of them. One who pays compensation for the loss of sight does not make good the damage as one who damages his fellow’s goods. The money only serves to make good the monetary damage involved in the loss of the eye or hand, but the actual loss of the eye can never be made good. Injury to another human being is a crime that cannot be made good by ransom or monetary payment. This is the reason why the Torah did not use the expression, He shall pay for his eye. This emerges even more clearly from the verse of our Parasha which we cited at the beginning. After the punishment for mortally injuring a man or beast is stated (v. 17-18) comes the punishment of the one who causes bodily injury to which the punishment for the one who injures a beast is not juxtaposed. For in the case of man the difference between mortal injury (murder) and maiming is qualitative (death—money), whereas in the case of beast there is merely a quantitative difference between killing it ad injuring it (greater or lesser compensation according to the injury). Our Parasha concludes by contrasting both:
The verse appears superfluous, a repetition of the previous, unless we bear in mind that it wishes to impress upon us the difference between man’s responsibility for his fellow’s goods and his responsibility for his fellow’s life as a human being created in the image of God. Questions for Further Study:
Does the above confirm in its assumptions to what we cited in the name of Benno Jacob or any other of the views referred to in the chapter? For study in depth of “eye for eye” we strongly recommend: Rabbi J. Horowitz, Franfurt am Main: Auge um Auge, Zahn um Zahn, Festschrift zu Hermann Cohens siebzigstem Geburtstage, Seite 609-658 Bruno Cassirer Verlag, Berlin 1912.
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