An Eye for An Eye? Really?
Why the Discrepancy Between the Written and Oral Traditions of Judaism?
- January 31, 2019
- |
- 25 Sh'vat 5779
Rabbi YY Jacobson
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Rabbi Avraham Yitzchak Kook
An Eye for An Eye? Really?
Why the Discrepancy Between the Written and Oral Traditions of Judaism?
Rabbi YY Jacobson
- January 31, 2019
Abuse of Human Rights
In recent years, we have become shockingly aware of the atrocities and abuses of human rights in many Muslim countries. The beheadings, the floggings, the stoning, the burnings, crucifixions, and diverse forms of torture are practiced daily, not only by ISIS, but in scores of Muslim countries.
I saw a video of a child in Iran being punished for apparently stealing something. They laid him on the ground and a car ran over his arm, amputating it. These and similar scenes of horror taking place in the 21st century are common in many Muslim countries, while most University protests are directed against Israel.
A Harsh Religion?
One of the more popular old polemics against Judaism is that our faith is harsh; it is a religion of cold and cruel laws, devoid of love and compassion. Christians used to present Christianity as the religion of love, and Judaism as the religion of stern revenge. The founder of Christianity supposedly said, “You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I say to you, ‘If anyone strikes you on the right cheek, turn to him the other.’”
This is referring to a law in the book of Exodus and Leviticus, Mishpatim and Emor. The Torah states that if two men become engaged in a brawl and one of them shoves a pregnant woman, causing her to miscarry, the man responsible must pay compensation, the amount to be determined in court.
22. And should men quarrel and hit a pregnant woman, and she miscarries, but there is no fatality, he shall surely be punished when the woman's husband makes demands of him, and he shall give [restitution] according to the judges' [orders].
כב. וְכִי יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה וְיָצְאוּ יְלָדֶיהָ וְלֹא יִהְיֶה אָסוֹן עָנוֹשׁ יֵעָנֵשׁ כַּאֲשֶׁר יָשִׁית עָלָיו בַּעַל הָאִשָּׁה וְנָתַן בִּפְלִלִים:
23. But if there is a fatality, you shall give a life for a life,
כג. וְאִם אָסוֹן יִהְיֶה וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ:
24. an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot,
כד. עַיִן תַּחַת עַיִן שֵׁן תַּחַת שֵׁן יָד תַּחַת יָד רֶגֶל תַּחַת רָגֶל:
25. a burn for a burn, a wound for a wound, a bruise for a bruise.
כה. כְּוִיָּה תַּחַת כְּוִיָּה פֶּצַע תַּחַת פָּצַע חַבּוּרָה תַּחַת חַבּוּרָה:
Clearly, it seems, the law is that if one of the men kills the woman, he dies. If he maims her, he receives in return what he did to her. “An eye for an eye… a wound for a wound.”
And yet, astonishingly, no Jewish court ever practiced this law, known in Latin as Lex Talionis, or the Law of Retaliation.[1]
The Proof of Maimonides
Maimonides, the 12th century sage, rabbi, physician, philosopher, leader, and the greatest codifier of Jewish law, writes:
רמב"ם הלכות חובל ומזיק א, ה: ומניין שזה שנאמר באברים "עין תחת עין . . ." (שמות כא,כד; ויקרא כד,כ), תשלומין הוא? נאמר "חבורה, תחת חבורה" (שמות כא,כה), ובפירוש נאמר "וכי יכה איש את ריעהו, באבן או באגרוף . . . רק שבתו ייתן, ורפוא ירפא" (ראה שמות כא,יח-יט). הא למדת ש"תחת" שנאמר בחבורה תשלומין, והוא הדין ל"תחת" הנאמר בעין ובשאר אברים.
He offers a wonderful proof:[2]
"An eye for an eye" covers two verses (Exodus 21:24-25), concluding a context of six verses (21:18-19, 22-25). If you view the verse in context, Maimonides argues, it is obvious that the Torah cannot be explained literally.
The chapter begins with a case of intentionally inflicted injury. It concludes with a case of accidental injury. The opening verses (18-19), on intentionally inflicted injury, read as follows:
18. And if men quarrel, and one strikes the other with a stone or with a fist, and he does not die but is confined to [his] bed,
יח. וְכִי יְרִיבֻן אֲנָשִׁים וְהִכָּה אִישׁ אֶת רֵעֵהוּ בְּאֶבֶן אוֹ בְאֶגְרֹף וְלֹא יָמוּת וְנָפַל לְמִשְׁכָּב:
19. if he gets up and walks about outside on his support, the assailant shall be cleared; he shall give only [payment] for his [enforced] idleness, and he shall provide for his cure.
יט. אִם יָקוּם וְהִתְהַלֵּךְ בַּחוּץ עַל מִשְׁעַנְתּוֹ וְנִקָּה הַמַּכֶּה רַק שִׁבְתּוֹ יִתֵּן וְרַפֹּא יְרַפֵּא:
The closing verses (22-25), on accidentally inflicted injury, quoted above, reads as follows: "And if men shall fight and collide with a pregnant woman and she miscarries but does not herself die, he [the fighting man] shall surely be punished, in accord with the assessment of [the value of the fetus]… But if there is a fatality, you shall give a life for a life; an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot; a burn for a burn, a wound for a wound…"
Asks the Rambam: We have a major contradiction. Here you tell me “a wound for a wound.” If I wound the woman, I must be wounded as I wounded her. But just three verses earlier you told me that if I wound my friend with a stone or my fist all I need to do is to cover all medical expenses and pay his wage as a result of him being unable to work. There is a blatant contradiction here, which renders the text completely senseless.
Thus, the rabbis conclude, that what the verse meant with the words “a wound for a wound,” or “an eye for an eye,” “a tooth for a tooth,” etc. is monetary compensation. If a person was hired to work for you for his entire life on all possible jobs, how much would the value decrease if he was missing an eye? That must be paid up, in addition to all of his or her medical expenses, and in addition to covering his or her wage during his illness, and in addition to paying for the pain and the humiliation. [3]
And then Rambam continues:
אף על פי שדברים אלו נראים מעניין תורה שבכתב, כולן מפורשין הן מפי משה מהר סיני, וכולן הלכה למעשה הן בידינו; וכזה ראו אבותינו דנין בבית דינו של יהושע, ובבית דינו של שמואל הרמתי, ובכל בית דין ובית דין שעמדו מימות משה ועד עכשיו.
Though this is obvious from the text itself, we have also heard this from Moses, who explained the text this way. So it was practiced in every Jewish court, in the court of Joshua, the court of Samuel, and in every Jewish court from the time of Moses to this very day.[4]
More Proofs
If we delve more into the text, we can see how convincing the argument is. The text says "And if men shall fight and collide with a pregnant woman and she miscarries but does not herself die, he [the fighting man] shall surely be punished, in accord with the assessment of [the value of the fetus]… But if there is a fatality, you shall give a life for a life; an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot; a burn for a burn, a wound for a wound…."
But what is the meaning of “life for life” if any harm follows? In this unintentional tragic mishap, can we seriously maintain that the Torah decrees the death penalty for the one who caused this accident? This is clearly an unfortunate circumstance for which the Torah set aside sites of refuge. Is the Torah contradicting itself and saying here that if you kill someone by mistake, you get killed? Obviously, then, the Torah is referring to money.[5]
What is even more convincing is when we view the context. In the case of intentionally inflicted injury, the Torah does not introduce the punishment of “an eye for an eye.” All that the Torah requires from the perpetrator is to pay for the time and medical expenses. This is contrary to the closing verse of an accidentally inflicted injury where the Torah introduces the phrase “an eye for an eye.” Can we really assume that if I hurt you intentionally, my punishment is only monetary; and when I wound you by err, they punish me by amputation? Logically one is forced to interpret here the meaning of “eye for an eye” as the value of an eye, meaning financial compensation.
Furthermore, if the Torah meant, taking the eye of the injurer for the eye of the victim, the Torah would have said so. But the Torah never says, "take an eye for an eye." The Torah says, “and you shall give… an eye for an eye.” Were the text's intention to extract an eye from the villain, the use of the word 'give' is inappropriate. The physical punishment of an “eye for an eye” is meant to take from the guilty, not to give to the victim. Giving implies something that is meant to reach the recipient. But if they take the eye of the perpetrator, what are they giving to the victim? Only monetary compensation fits that definition.
An Eye Beneath an Eye
The Gaon of Vilna offers a further brilliant insight. The Torah does not say, "an eye for an eye," It says, literally, "an eye beneath an eye." In correct Hebrew grammar, “an eye for an eye” should have been stated in these words: “ayin bead ayin,” instead of “ayin tachat ayin,” an eye beneath an eye. Why did the Torah not use the more appropriate “ayin bead (literally, for) ayin” instead of “ayin tachat” (literally, underneath)?
This hints to us that the punishment is beneath the eye. The three Hebrew letters for the Hebrew word ayin—“eye”—are ayin, yod, nun. If we take the letters that are directly “beneath” each of these letters, i.e., that follow them in the alphabet, we get the three letters pei, kaf, samech, which, when rearranged, yield the Hebrew word kesef, “money.”[6]
[Those of you who question the method of interchanging letters to get kesef from ayin might consider the classic Stanley Kubrick film 2001. The name of the computer in that film is HAL, which Kubrick derived from IBM, the letters that are immediately “beneath” the letters HAL in the English alphabet. This construct is called temurah.]
This truth is really expressed in the very word “tachat.” The word tachat connotes not identical substitution, but one item substituted for a different item. This strange phraseology of tachat is found in one other place in the Torah, in the Book of Genesis. After Abraham lifts his sword ready to sacrifice Isaac on Mount Moriah, he was suddenly told by the angel of G-d not to sacrifice Isaac, "Abraham went and took the ram and brought it up for a burnt offering instead of (tachat) his son." We see from here that tachat does not imply a duplicate substitution (retaliation), but rather implies monetary compensation.
The Talmud dedicates two pages in which nine of the greatest sages delve into the text and deduce that the meaning of the Torah is not physical punishment but monetary compensation. How, for example, could justice be served if the person who poked out his neighbor's eyes was himself blind? Or what if one of the parties had only one functioning eye before the incident? Clearly, there are many cases in which such a punishment would be neither equitable nor just.
In addition to this, how is it even possible to exactly duplicate bodily harm? Can you ever be sure it will be exactly an “eye for an eye”? [7]
Say What You Mean
Granted. But why doesn’t the Torah simply say what it means? If the Torah never meant to mandate physical punishment in cases of personal injury, why wasn’t the text more clearly written? A great deal of misunderstanding, misinterpretation, and trouble could have been avoided had the Torah simply stated, “The court shall levy the appropriate compensatory payment in cases of personal injury.”
Some even want to say that as society has become less barbaric, the rabbis reinterpreted the verse to mean one pays the damages for the eye, instead of actually taking out the eye of the perpetrator as it used to be done in the olden days. Yet this is simply untrue. Throughout all of Jewish history, we do not have a SINGLE RECORD of any Torah judge implementing “an eye for an eye!”
Two Perspectives
It is here that we come to discover the nuanced way in which Judaism has been presented. The biblical text is not a blueprint for practical law; the fact is that there is almost not a single mitzvah in the Torah that can be fully understood when reading the biblical text. Not Tefilin, not Esrog, not Matzah, not Sukkah, not Mezuzah, not Mikvah, not Shabbos, and not Shofar.[8] Thus, Moses presented an oral explanation for the biblical text so that we can appreciate its full meaning.
What then is the purpose of the biblical text? It describes not so much practical law, but rather the full meaning of a person’s actions from G-d’s perspective. Its words, written often in code, capture the full scope and meaning of every single action of a person, on the most spiritual, abstract level, all the way down to the most concrete plane.[9]
Maimonides, here again, comes to the rescue. In a few brief words, he shares a very profound and moving idea.
רמב"ם הלכות חובל ומזיק א, ג: זה שנאמר בתורה "כאשר יתן מום באדם, כן יינתן בו" (אמור כד, כ), אינו לחבול בזה כמו שחבל בחברו, אלא שהוא ראוי לחסרו אבר או לחבול בו כמו שעשה; ולפיכך משלם נזקו. והרי הוא אומר "ולא תקחו כופר לנפש רוצח" (במדבר לה, לא), לרוצח בלבד הוא שאין כופר; אבל לחסרון אברים או לחבלות, יש כופר.
Rambam, Laws of Personal Injuries 1:3: “The Torah’s statement ‘As a man shall inflict a wound upon a person, so shall be inflicted upon him’ does not mean that we should physically injure the perpetrator, but that the perpetrator is deserving of losing his limb and must therefore pay financial restitution.”
Apparently, the Rambam believes, as do many other scholars who echo the same sentiment, that the Torah confronts a serious dilemma as it moves to convey its deeply nuanced approach to cases of personal injury: using the tools at its disposal, how can Jewish law best reflect the discrepancy between the “deserved” and “actual” punishment?
An eye for an eye is the ultimate statement of human equality. Every person's eye is as precious as anyone else's. The eye of a prince is worth no more than the eye of a peasant. This was completely new in history, transforming the landscape of the moral language of civilization. (The Babylonian Code of Hammurabi, for example, legislated that the eye of a noble was of much greater value than the eye of a commoner.)
Had the Torah, however, mandated financial payment from the outset, the full gravity of the crime would not have been conveyed. The event would have been consigned to the realm of dinei mamonot, monetary crimes, and the precious nature of human life and limb would have been diminished.
The gravity of the crime is such that, on a theoretical level, on the level of “deserved punishment,” the case belongs squarely in the realm of dinei nefashot, capital law. The perpetrator may deserve the physical loss of a limb in return for the damage inflicted upon his victim. Torah law, however, will not consider physical mutilation as a possible punishment for a crime. The penalty must therefore be commuted into financial terms.
The Torah, therefore, proceeds to express, with delicate balance, both theory and practice within the law. First, the written text records the punishment for wounding your fellow, in terms of compensation. Then the Torah goes on to express the “deserved punishment” without any mitigation: “…an eye for an eye, a tooth for a tooth…” In this way, the severity of the crime is immediately made clear to all. The Oral Law serves as the vehicle of transmission, so we don’t err in practice.
Jewish law thus finds a way to memorialize both the “deserved” and the “actual” punishments within the halachic code.
No Atonement
Why is this so crucial? So that you never think that maiming someone’s body is merely a monetary issue, like breaking his watch. It is not! It is something you have no way of atoning for even if you pay him all the money in the world. Even if you did it by mistake, you can never compensate for it via finances alone.
It also teaches us the truth that there are no exceptions. An eye of a peasant child is no less of value than the eye of a powerful monarch. If I poke out that eye, I have done something for which there is no real way of atonement through money.
Maimonides more fully developed the idea that monetary restitution alone cannot atone for physical damages:
רמב"ם הלכות חובל ומזיק ה, ט: אינו דומה מזיק חברו בגופו, למזיק ממונו, שהמזיק ממון חברו, כיון ששילם מה שהוא חייב לשלם, נתכפר לו. אבל חובל בחברו, אף על פי שנתן לו חמישה דברים, אין מתכפר לו; ואפילו הקריב כל אילי נביות, אין מתכפר לו, ולא נמחל עוונו, עד שיבקש מן הנחבל וימחול לו.
"Causing bodily injury is not like causing monetary loss. One who causes monetary loss is exonerated as soon as he repays the damages. But if one injured his neighbor, even though he paid all five categories of monetary restitution — even if he offered to G-d all the rams of Nevayot [see Isaiah 60:7] — he is not exonerated until he has asked the injured party for forgiveness, and he agrees to forgive him.” (Rambam, Personal Injuries, 5:9)
When Your Animal Kills
We have another fascinating example for this a few sentences further in Parshat Mishpatim, where an even more glaring example of the discrepancy between theory and practice in the realm of punishment emerges. In this case, both variables are bluntly recorded in the written text itself.
As the Torah discusses the laws of a habitually violent animal owned by a Jew, two conflicting consequences appear in the text for the very same crime.
The Torah states that, under normal circumstances, if an individual’s ox gores and kills another human being, the animal is put to death but the owner receives no further penalty. If, however, the animal has shown clear violent tendencies in the past – to the extent that the owner has been warned yet has failed to take appropriate precautions – the Torah emphatically proclaims, “…The ox shall be stoned and even its owner shall die.”
But in the very next verse, the text offers the condemned man an opportunity to escape his dire fate through the payment of a financial penalty assessed by the court.
28. And if a bull gores a man or a woman and [that one] dies, the bull shall surely be stoned, and its flesh shall not be eaten, and the owner of the bull is clear.
כח. וְכִי יִגַּח שׁוֹר אֶת אִישׁ אוֹ אֶת אִשָּׁה וָמֵת סָקוֹל יִסָּקֵל הַשּׁוֹר וְלֹא יֵאָכֵל אֶת בְּשָׂרוֹ וּבַעַל הַשּׁוֹר נָקִי:
29. But if it is a [habitually] goring bull since yesterday and the day before yesterday, and its owner had been warned, but he did not guard it, and it puts to death a man or a woman, the bull shall be stoned, and also its owner shall be put to death,
כט. וְאִם שׁוֹר נַגָּח הוּא מִתְּמֹל שִׁלְשֹׁם וְהוּעַד בִּבְעָלָיו וְלֹא יִשְׁמְרֶנּוּ וְהֵמִית אִישׁ אוֹ אִשָּׁה הַשּׁוֹר יִסָּקֵל וְגַם בְּעָלָיו יוּמָת:
30. Insofar as ransom shall be levied upon him, he shall give the redemption of his soul according to all that is levied upon him.
ל. אִם כֹּפֶר יוּשַׁת עָלָיו וְנָתַן פִּדְיֹן נַפְשׁוֹ כְּכֹל אֲשֶׁר יוּשַׁת עָלָיו:
The written text itself seems bewilderingly contradictory. On the one hand, the Torah clearly states that the owner of a violent animal who killed another human being “shall also die.” Then, however, it says that he pays money to the heirs of the victim—the full “value” of the person as it were.
What is going on here? How can we take such a text seriously?
Once again, our question can be answered by considering the distinction between “deserved” and “actual” punishment.
The Torah wants us to understand that, on a theoretical level, the owner of the ox who killed a human deserves to die. His negligence has directly resulted in the loss of human life. On a practical level, however, this sentence cannot be carried out. Halacha only mandates capital or corporal punishment in cases of active crimes. Crimes of “un-involvement,” consisting of the failure to do something right, cannot carry such penalties in an earthly court. The owner who fails to guard his dangerous animal can only be fully punished through heavenly means.
Through carefully balancing the textual flow, the Torah manages to convey a complex, multilayered message of personal responsibility in a nuanced case of “un-involvement.”
Azar's Question
Yet it goes one step deeper.
During the years when Rabbi Avraham Yitzchak Kook (1865-1935) served as chief rabbi of Jaffa, before he became chief rabbi of Israel (then Palestine), he met and befriended many of the Hebrew writers and intellectuals of the time. His initial contact in that circle was the 'elder' of the Hebrew writers, Alexander Ziskind Rabinowitz, better known by the abbreviation Azar. Azar was one of the leaders of Po'alei Tzion, an anti-religious, Marxist party; but over the years, Azar developed strong ties with traditional Judaism. He met with Rabbi Kook many times, and they became friends.
Azar once asked Rabbi Kook: How can the Sages interpret the verse "an eye for an eye" as referring to monetary compensation? Does this explanation not contradict the peshat, the simple meaning of the verse?
True, as we recall, the Talmud brings a number of proofs that the phrase "eye for an eye" cannot be taken literally. But what bothered Azar was the blatant discrepancy between the simple reading of the verse and the Talmudic interpretation. After all is said and done, if an "eye for an eye" in fact means monetary compensation, why does the Torah not state that explicitly?
The Parable
Rabbi Kook responded by way of a parable. The Kabbalists, he explained, compared the Written Torah to a father and the Oral Torah to a mother. Just as the mother absorbs the seed of the father, and develops it into an embryo, and ultimately a full fetus, so the oral tradition develops and explains the seminal, brief and cryptic text of the written Torah.[10] When parents discover their son has committed a grave offense, how do they react—at least back in the 1920s when Rabbi Kook had this conversation with Azar. (Today, we know, things have changed somewhat; yet the principle behind this remains the same).
The father immediately raises his hand to punish his son. But the mother, full of sensitivity and compassion, rushes to stop him. 'Please, not in anger!' she pleads, and she convinces the father to mete out a lighter punishment.
An onlooker might conclude that all this drama was superfluous. In the end, the boy did not receive corporal punishment. The mother was triumphant. Her husband knew he has to listen to her. Why make a big show of it?
In fact, the scene provided an important educational lesson for the errant son. Even though he was only lightly disciplined, the son was made to understand that his actions deserved a much more severe punishment.
A Fitting Punishment
This is exactly the case when one individual injures another. The offender needs to understand the gravity of his actions. That is why the written text, the “father,” declares: An eye for an eye. In practice, though, he only pays monetary restitution, as the Oral Law rules. For the Oral Law is like the mother.
But he should not think that with money alone he can repair the damage he inflicted. How will not he think so? Only if the “father”—the written Torah—states in uncompromising terms “an eye for an eye; a tooth for a tooth; a wound for a wound.”
Azar was astounded. He was impressed how one can clarify legal concepts in Jewish Law by way of Kabbalistic metaphors. Azar remarked: “I once heard the Rabbi say that the boundaries between Halacha and Kabbalah, the exoteric and the esoteric areas of Torah, are not rigid. For some people, Torah with Rashi's commentary is an esoteric study; while for others, even a chapter in the Kabbalistic work Eitz Chayim belongs to the revealed part of Torah.”[11]
Here we have one example of how one verse in Torah, far from expressing the harshness of Judaism, actually served a blueprint to teach our people the infinite dignity of the human body carved in G-d’s image.
This we must teach the world.
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[1] It is interesting to note that The Code of Hammurabi is a well-preserved Babylonian law code of ancient Mesopotamia, dating back to about 1754 BCE. It is one of the oldest deciphered writings of significant length in the world. The sixth Babylonian king, Hammurabi, enacted the code, and partial copies exist on a human-sized stone stele and various clay tablets. The Code consists of 282 laws, one of them is: "an eye for an eye, a tooth for a tooth" (lex talionis). We do not know if the Lex Talionis of Hammurabi’s Code was carried out literally in ancient times. There are scholars who believe that the Code itself was not the law code by which the society operated, but rather the fulfillment of a so-called “divine mandate” by the gods to the king: a law code to prove he was divinely ordained to rule, but not one which was operative in ancient Babylon. Regardless, in Judaism “an eye for an eye…” was never understood literally.
[2] Many wondered why the Rambam came up with his own proof, not stated in the Talmud exploring this matter. The truth is that the source of the Rambam's proof is in Mechilta Derashbi Parshas Mishptim.
[3] See the details in Rambam Hilchos Chovel Umazik ch. 1.
[4] Question: How then can Rabbi Eliezer, in Talmud Bava Kama p. 83 interpret the verse literally? Many say that what Rabbi Eliezer means is that the perpetrator pays “demei mazik,” the worth of the limbs of the perpetrator, rather than the victim, thus conveying that in essence, it was his limb that had to be punished. See at length Torah Shlaimah to Mishpatim and Meluim to Mishpatim, in the chapter dedicated to this discussion.
[5] We can explain that this is the case where one man intended to kill his fellow, and then killed the woman by error. See Rashi to this verse for the two opinions on the matter. According to the Halacha, if one has the intention to kill someone and kills someone else, he is not killed.
[6] Gaon of Vilna in Torah Gems, volume 2, p. 151
[7] Talmud Bava Kama pp. 83-84. Here is just one excerpt from there: It was taught in a baraita: Reb Shimon b. Yochai says: "Eye for eye" means pecuniary compensation. You say pecuniary compensation, but perhaps it is not so, and actual retaliation by putting out an eye is meant? What then will you say where a blind man put out the eye of another man, or where a cripple cut off the hand of another, or where a lame person broke the leg of another? How can I carry out, in this case, the principle of retaliation of "eye for eye" seeing that the Torah says, “You shall have one manner of law,” implying that the manner of law should be the same in all cases? (Baba Kamma 84a).
[8] See at length Tanya Igeres Hakodesh ch. 29.
[9] The great 14th-century kabbalist Rabbi Menachem Rikanti in his commentary on Mishpatim explains, amazingly, the mystical meaning of this verse. A human body and all of its limbs reflect the Divine metaphysical “body,” known as “Adam Haelyon.” The body embodies the Divine attributes correlating to the various parts of one’s body. When one knocks out the tooth of another, he, so to speak, removes the spiritual “tooth” within the Divine source, and indeed loses the spiritual source of his tooth. If we can appreciate the Torah text also as a spiritual manual for the spiritual limbs of a person, then the verse actually also has a literal meaning.
[10] Tanya Igeres Hakodesh ibid.
[11] This story is recorded in Sapphire from the Land of Israel. Adapted from "Malachim Kivnei Adam" by R. Simcha Raz, pp. 351, 360.
- Comment
Class Summary:
Why the Discrepancy between the Written and Oral Traditions of Judaism?
Dedicated by Menachem Yisroel Abrams in honor of his family: David Chai, Moshe, Dvora, Menashe Chaim, Bracha Esther, Rachel, Yenon, Batya, Liev David, Mazal Yishua, Ayala & Emma.
Abuse of Human Rights
In recent years, we have become shockingly aware of the atrocities and abuses of human rights in many Muslim countries. The beheadings, the floggings, the stoning, the burnings, crucifixions, and diverse forms of torture are practiced daily, not only by ISIS, but in scores of Muslim countries.
I saw a video of a child in Iran being punished for apparently stealing something. They laid him on the ground and a car ran over his arm, amputating it. These and similar scenes of horror taking place in the 21st century are common in many Muslim countries, while most University protests are directed against Israel.
A Harsh Religion?
One of the more popular old polemics against Judaism is that our faith is harsh; it is a religion of cold and cruel laws, devoid of love and compassion. Christians used to present Christianity as the religion of love, and Judaism as the religion of stern revenge. The founder of Christianity supposedly said, “You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I say to you, ‘If anyone strikes you on the right cheek, turn to him the other.’”
This is referring to a law in the book of Exodus and Leviticus, Mishpatim and Emor. The Torah states that if two men become engaged in a brawl and one of them shoves a pregnant woman, causing her to miscarry, the man responsible must pay compensation, the amount to be determined in court.
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22. And should men quarrel and hit a pregnant woman, and she miscarries, but there is no fatality, he shall surely be punished when the woman's husband makes demands of him, and he shall give [restitution] according to the judges' [orders]. |
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כב. וְכִי יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה וְיָצְאוּ יְלָדֶיהָ וְלֹא יִהְיֶה אָסוֹן עָנוֹשׁ יֵעָנֵשׁ כַּאֲשֶׁר יָשִׁית עָלָיו בַּעַל הָאִשָּׁה וְנָתַן בִּפְלִלִים: |
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23. But if there is a fatality, you shall give a life for a life, |
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כג. וְאִם אָסוֹן יִהְיֶה וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ: |
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24. an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot, |
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כד. עַיִן תַּחַת עַיִן שֵׁן תַּחַת שֵׁן יָד תַּחַת יָד רֶגֶל תַּחַת רָגֶל: |
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25. a burn for a burn, a wound for a wound, a bruise for a bruise. |
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כה. כְּוִיָּה תַּחַת כְּוִיָּה פֶּצַע תַּחַת פָּצַע חַבּוּרָה תַּחַת חַבּוּרָה: |
Clearly, it seems, the law is that if one of the men kills the woman, he dies. If he maims her, he receives in return what he did to her. “An eye for an eye… a wound for a wound.”
And yet, astonishingly, no Jewish court ever practiced this law, known in Latin as Lex Talionis, or the Law of Retaliation.[1]
The Proof of Maimonides
Maimonides, the 12th century sage, rabbi, physician, philosopher, leader, and the greatest codifier of Jewish law, writes:
רמב"ם הלכות חובל ומזיק א, ה: ומניין שזה שנאמר באברים "עין תחת עין . . ." (שמות כא,כד; ויקרא כד,כ), תשלומין הוא? נאמר "חבורה, תחת חבורה" (שמות כא,כה), ובפירוש נאמר "וכי יכה איש את ריעהו, באבן או באגרוף . . . רק שבתו ייתן, ורפוא ירפא" (ראה שמות כא,יח-יט). הא למדת ש"תחת" שנאמר בחבורה תשלומין, והוא הדין ל"תחת" הנאמר בעין ובשאר אברים.
He offers a wonderful proof:[2]
"An eye for an eye" covers two verses (Exodus 21:24-25), concluding a context of six verses (21:18-19, 22-25). If you view the verse in context, Maimonides argues, it is obvious that the Torah cannot be explained literally.
The chapter begins with a case of intentionally inflicted injury. It concludes with a case of accidental injury. The opening verses (18-19), on intentionally inflicted injury, read as follows:
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18. And if men quarrel, and one strikes the other with a stone or with a fist, and he does not die but is confined to [his] bed, |
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יח. וְכִי יְרִיבֻן אֲנָשִׁים וְהִכָּה אִישׁ אֶת רֵעֵהוּ בְּאֶבֶן אוֹ בְאֶגְרֹף וְלֹא יָמוּת וְנָפַל לְמִשְׁכָּב: |
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19. if he gets up and walks about outside on his support, the assailant shall be cleared; he shall give only [payment] for his [enforced] idleness, and he shall provide for his cure. |
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יט. אִם יָקוּם וְהִתְהַלֵּךְ בַּחוּץ עַל מִשְׁעַנְתּוֹ וְנִקָּה הַמַּכֶּה רַק שִׁבְתּוֹ יִתֵּן וְרַפֹּא יְרַפֵּא: |
The closing verses (22-25), on accidentally inflicted injury, quoted above, reads as follows: "And if men shall fight and collide with a pregnant woman and she miscarries but does not herself die, he [the fighting man] shall surely be punished, in accord with the assessment of [the value of the fetus]… But if there is a fatality, you shall give a life for a life; an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot; a burn for a burn, a wound for a wound…"
Asks the Rambam: We have a major contradiction. Here you tell me “a wound for a wound.” If I wound the woman, I must be wounded as I wounded her. But just three verses earlier you told me that if I wound my friend with a stone or my fist all I need to do is to cover all medical expenses and pay his wage as a result of him being unable to work. There is a blatant contradiction here, which renders the text completely senseless.
Thus, the rabbis conclude, that what the verse meant with the words “a wound for a wound,” or “an eye for an eye,” “a tooth for a tooth,” etc. is monetary compensation. If a person was hired to work for you for his entire life on all possible jobs, how much would the value decrease if he was missing an eye? That must be paid up, in addition to all of his or her medical expenses, and in addition to covering his or her wage during his illness, and in addition to paying for the pain and the humiliation. [3]
And then Rambam continues:
אף על פי שדברים אלו נראים מעניין תורה שבכתב, כולן מפורשין הן מפי משה מהר סיני, וכולן הלכה למעשה הן בידינו; וכזה ראו אבותינו דנין בבית דינו של יהושע, ובבית דינו של שמואל הרמתי, ובכל בית דין ובית דין שעמדו מימות משה ועד עכשיו.
Though this is obvious from the text itself, we have also heard this from Moses, who explained the text this way. So it was practiced in every Jewish court, in the court of Joshua, the court of Samuel, and in every Jewish court from the time of Moses to this very day.[4]
More Proofs
If we delve more into the text, we can see how convincing the argument is. The text says "And if men shall fight and collide with a pregnant woman and she miscarries but does not herself die, he [the fighting man] shall surely be punished, in accord with the assessment of [the value of the fetus]… But if there is a fatality, you shall give a life for a life; an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot; a burn for a burn, a wound for a wound…."
But what is the meaning of “life for life” if any harm follows? In this unintentional tragic mishap, can we seriously maintain that the Torah decrees the death penalty for the one who caused this accident? This is clearly an unfortunate circumstance for which the Torah set aside sites of refuge. Is the Torah contradicting itself and saying here that if you kill someone by mistake, you get killed? Obviously, then, the Torah is referring to money.[5]
What is even more convincing is when we view the context. In the case of intentionally inflicted injury, the Torah does not introduce the punishment of “an eye for an eye.” All that the Torah requires from the perpetrator is to pay for the time and medical expenses. This is contrary to the closing verse of an accidentally inflicted injury where the Torah introduces the phrase “an eye for an eye.” Can we really assume that if I hurt you intentionally, my punishment is only monetary; and when I wound you by err, they punish me by amputation? Logically one is forced to interpret here the meaning of “eye for an eye” as the value of an eye, meaning financial compensation.
Furthermore, if the Torah meant, taking the eye of the injurer for the eye of the victim, the Torah would have said so. But the Torah never says, "take an eye for an eye." The Torah says, “and you shall give… an eye for an eye.” Were the text's intention to extract an eye from the villain, the use of the word 'give' is inappropriate. The physical punishment of an “eye for an eye” is meant to take from the guilty, not to give to the victim. Giving implies something that is meant to reach the recipient. But if they take the eye of the perpetrator, what are they giving to the victim? Only monetary compensation fits that definition.
An Eye Beneath an Eye
The Gaon of Vilna offers a further brilliant insight. The Torah does not say, "an eye for an eye," It says, literally, "an eye beneath an eye." In correct Hebrew grammar, “an eye for an eye” should have been stated in these words: “ayin bead ayin,” instead of “ayin tachat ayin,” an eye beneath an eye. Why did the Torah not use the more appropriate “ayin bead (literally, for) ayin” instead of “ayin tachat” (literally, underneath)?
This hints to us that the punishment is beneath the eye. The three Hebrew letters for the Hebrew word ayin—“eye”—are ayin, yod, nun. If we take the letters that are directly “beneath” each of these letters, i.e., that follow them in the alphabet, we get the three letters pei, kaf, samech, which, when rearranged, yield the Hebrew word kesef, “money.”[6]
[Those of you who question the method of interchanging letters to get kesef from ayin might consider the classic Stanley Kubrick film 2001. The name of the computer in that film is HAL, which Kubrick derived from IBM, the letters that are immediately “beneath” the letters HAL in the English alphabet. This construct is called temurah.]
This truth is really expressed in the very word “tachat.” The word tachat connotes not identical substitution, but one item substituted for a different item. This strange phraseology of tachat is found in one other place in the Torah, in the Book of Genesis. After Abraham lifts his sword ready to sacrifice Isaac on Mount Moriah, he was suddenly told by the angel of G-d not to sacrifice Isaac, "Abraham went and took the ram and brought it up for a burnt offering instead of (tachat) his son." We see from here that tachat does not imply a duplicate substitution (retaliation), but rather implies monetary compensation.
The Talmud dedicates two pages in which nine of the greatest sages delve into the text and deduce that the meaning of the Torah is not physical punishment but monetary compensation. How, for example, could justice be served if the person who poked out his neighbor's eyes was himself blind? Or what if one of the parties had only one functioning eye before the incident? Clearly, there are many cases in which such a punishment would be neither equitable nor just.
In addition to this, how is it even possible to exactly duplicate bodily harm? Can you ever be sure it will be exactly an “eye for an eye”? [7]
Say What You Mean
Granted. But why doesn’t the Torah simply say what it means? If the Torah never meant to mandate physical punishment in cases of personal injury, why wasn’t the text more clearly written? A great deal of misunderstanding, misinterpretation, and trouble could have been avoided had the Torah simply stated, “The court shall levy the appropriate compensatory payment in cases of personal injury.”
Some even want to say that as society has become less barbaric, the rabbis reinterpreted the verse to mean one pays the damages for the eye, instead of actually taking out the eye of the perpetrator as it used to be done in the olden days. Yet this is simply untrue. Throughout all of Jewish history, we do not have a SINGLE RECORD of any Torah judge implementing “an eye for an eye!”
Two Perspectives
It is here that we come to discover the nuanced way in which Judaism has been presented. The biblical text is not a blueprint for practical law; the fact is that there is almost not a single mitzvah in the Torah that can be fully understood when reading the biblical text. Not Tefilin, not Esrog, not Matzah, not Sukkah, not Mezuzah, not Mikvah, not Shabbos, and not Shofar.[8] Thus, Moses presented an oral explanation for the biblical text so that we can appreciate its full meaning.
What then is the purpose of the biblical text? It describes not so much practical law, but rather the full meaning of a person’s actions from G-d’s perspective. Its words, written often in code, capture the full scope and meaning of every single action of a person, on the most spiritual, abstract level, all the way down to the most concrete plane.[9]
Maimonides, here again, comes to the rescue. In a few brief words, he shares a very profound and moving idea.
רמב"ם הלכות חובל ומזיק א, ג: זה שנאמר בתורה "כאשר יתן מום באדם, כן יינתן בו" (אמור כד, כ), אינו לחבול בזה כמו שחבל בחברו, אלא שהוא ראוי לחסרו אבר או לחבול בו כמו שעשה; ולפיכך משלם נזקו. והרי הוא אומר "ולא תקחו כופר לנפש רוצח" (במדבר לה, לא), לרוצח בלבד הוא שאין כופר; אבל לחסרון אברים או לחבלות, יש כופר.
Rambam, Laws of Personal Injuries 1:3: “The Torah’s statement ‘As a man shall inflict a wound upon a person, so shall be inflicted upon him’ does not mean that we should physically injure the perpetrator, but that the perpetrator is deserving of losing his limb and must therefore pay financial restitution.”
Apparently, the Rambam believes, as do many other scholars who echo the same sentiment, that the Torah confronts a serious dilemma as it moves to convey its deeply nuanced approach to cases of personal injury: using the tools at its disposal, how can Jewish law best reflect the discrepancy between the “deserved” and “actual” punishment?
An eye for an eye is the ultimate statement of human equality. Every person's eye is as precious as anyone else's. The eye of a prince is worth no more than the eye of a peasant. This was completely new in history, transforming the landscape of the moral language of civilization. (The Babylonian Code of Hammurabi, for example, legislated that the eye of a noble was of much greater value than the eye of a commoner.)
Had the Torah, however, mandated financial payment from the outset, the full gravity of the crime would not have been conveyed. The event would have been consigned to the realm of dinei mamonot, monetary crimes, and the precious nature of human life and limb would have been diminished.
The gravity of the crime is such that, on a theoretical level, on the level of “deserved punishment,” the case belongs squarely in the realm of dinei nefashot, capital law. The perpetrator may deserve the physical loss of a limb in return for the damage inflicted upon his victim. Torah law, however, will not consider physical mutilation as a possible punishment for a crime. The penalty must therefore be commuted into financial terms.
The Torah, therefore, proceeds to express, with delicate balance, both theory and practice within the law. First, the written text records the punishment for wounding your fellow, in terms of compensation. Then the Torah goes on to express the “deserved punishment” without any mitigation: “…an eye for an eye, a tooth for a tooth…” In this way, the severity of the crime is immediately made clear to all. The Oral Law serves as the vehicle of transmission, so we don’t err in practice.
Jewish law thus finds a way to memorialize both the “deserved” and the “actual” punishments within the halachic code.
No Atonement
Why is this so crucial? So that you never think that maiming someone’s body is merely a monetary issue, like breaking his watch. It is not! It is something you have no way of atoning for even if you pay him all the money in the world. Even if you did it by mistake, you can never compensate for it via finances alone.
It also teaches us the truth that there are no exceptions. An eye of a peasant child is no less of value than the eye of a powerful monarch. If I poke out that eye, I have done something for which there is no real way of atonement through money.
Maimonides more fully developed the idea that monetary restitution alone cannot atone for physical damages:
רמב"ם הלכות חובל ומזיק ה, ט: אינו דומה מזיק חברו בגופו, למזיק ממונו, שהמזיק ממון חברו, כיון ששילם מה שהוא חייב לשלם, נתכפר לו. אבל חובל בחברו, אף על פי שנתן לו חמישה דברים, אין מתכפר לו; ואפילו הקריב כל אילי נביות, אין מתכפר לו, ולא נמחל עוונו, עד שיבקש מן הנחבל וימחול לו.
"Causing bodily injury is not like causing monetary loss. One who causes monetary loss is exonerated as soon as he repays the damages. But if one injured his neighbor, even though he paid all five categories of monetary restitution — even if he offered to G-d all the rams of Nevayot [see Isaiah 60:7] — he is not exonerated until he has asked the injured party for forgiveness, and he agrees to forgive him.” (Rambam, Personal Injuries, 5:9)
When Your Animal Kills
We have another fascinating example for this a few sentences further in Parshat Mishpatim, where an even more glaring example of the discrepancy between theory and practice in the realm of punishment emerges. In this case, both variables are bluntly recorded in the written text itself.
As the Torah discusses the laws of a habitually violent animal owned by a Jew, two conflicting consequences appear in the text for the very same crime.
The Torah states that, under normal circumstances, if an individual’s ox gores and kills another human being, the animal is put to death but the owner receives no further penalty. If, however, the animal has shown clear violent tendencies in the past – to the extent that the owner has been warned yet has failed to take appropriate precautions – the Torah emphatically proclaims, “…The ox shall be stoned and even its owner shall die.”
But in the very next verse, the text offers the condemned man an opportunity to escape his dire fate through the payment of a financial penalty assessed by the court.
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28. And if a bull gores a man or a woman and [that one] dies, the bull shall surely be stoned, and its flesh shall not be eaten, and the owner of the bull is clear. |
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כח. וְכִי יִגַּח שׁוֹר אֶת אִישׁ אוֹ אֶת אִשָּׁה וָמֵת סָקוֹל יִסָּקֵל הַשּׁוֹר וְלֹא יֵאָכֵל אֶת בְּשָׂרוֹ וּבַעַל הַשּׁוֹר נָקִי: |
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29. But if it is a [habitually] goring bull since yesterday and the day before yesterday, and its owner had been warned, but he did not guard it, and it puts to death a man or a woman, the bull shall be stoned, and also its owner shall be put to death, |
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כט. וְאִם שׁוֹר נַגָּח הוּא מִתְּמֹל שִׁלְשֹׁם וְהוּעַד בִּבְעָלָיו וְלֹא יִשְׁמְרֶנּוּ וְהֵמִית אִישׁ אוֹ אִשָּׁה הַשּׁוֹר יִסָּקֵל וְגַם בְּעָלָיו יוּמָת: |
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30. Insofar as ransom shall be levied upon him, he shall give the redemption of his soul according to all that is levied upon him. |
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ל. אִם כֹּפֶר יוּשַׁת עָלָיו וְנָתַן פִּדְיֹן נַפְשׁוֹ כְּכֹל אֲשֶׁר יוּשַׁת עָלָיו: |
The written text itself seems bewilderingly contradictory. On the one hand, the Torah clearly states that the owner of a violent animal who killed another human being “shall also die.” Then, however, it says that he pays money to the heirs of the victim—the full “value” of the person as it were.
What is going on here? How can we take such a text seriously?
Once again, our question can be answered by considering the distinction between “deserved” and “actual” punishment.
The Torah wants us to understand that, on a theoretical level, the owner of the ox who killed a human deserves to die. His negligence has directly resulted in the loss of human life. On a practical level, however, this sentence cannot be carried out. Halacha only mandates capital or corporal punishment in cases of active crimes. Crimes of “un-involvement,” consisting of the failure to do something right, cannot carry such penalties in an earthly court. The owner who fails to guard his dangerous animal can only be fully punished through heavenly means.
Through carefully balancing the textual flow, the Torah manages to convey a complex, multilayered message of personal responsibility in a nuanced case of “un-involvement.”
Azar's Question
Yet it goes one step deeper.
During the years when Rabbi Avraham Yitzchak Kook (1865-1935) served as chief rabbi of Jaffa, before he became chief rabbi of Israel (then Palestine), he met and befriended many of the Hebrew writers and intellectuals of the time. His initial contact in that circle was the 'elder' of the Hebrew writers, Alexander Ziskind Rabinowitz, better known by the abbreviation Azar. Azar was one of the leaders of Po'alei Tzion, an anti-religious, Marxist party; but over the years, Azar developed strong ties with traditional Judaism. He met with Rabbi Kook many times, and they became friends.
Azar once asked Rabbi Kook: How can the Sages interpret the verse "an eye for an eye" as referring to monetary compensation? Does this explanation not contradict the peshat, the simple meaning of the verse?
True, as we recall, the Talmud brings a number of proofs that the phrase "eye for an eye" cannot be taken literally. But what bothered Azar was the blatant discrepancy between the simple reading of the verse and the Talmudic interpretation. After all is said and done, if an "eye for an eye" in fact means monetary compensation, why does the Torah not state that explicitly?
The Parable
Rabbi Kook responded by way of a parable. The Kabbalists, he explained, compared the Written Torah to a father and the Oral Torah to a mother. Just as the mother absorbs the seed of the father, and develops it into an embryo, and ultimately a full fetus, so the oral tradition develops and explains the seminal, brief and cryptic text of the written Torah.[10] When parents discover their son has committed a grave offense, how do they react—at least back in the 1920s when Rabbi Kook had this conversation with Azar. (Today, we know, things have changed somewhat; yet the principle behind this remains the same).
The father immediately raises his hand to punish his son. But the mother, full of sensitivity and compassion, rushes to stop him. 'Please, not in anger!' she pleads, and she convinces the father to mete out a lighter punishment.
An onlooker might conclude that all this drama was superfluous. In the end, the boy did not receive corporal punishment. The mother was triumphant. Her husband knew he has to listen to her. Why make a big show of it?
In fact, the scene provided an important educational lesson for the errant son. Even though he was only lightly disciplined, the son was made to understand that his actions deserved a much more severe punishment.
A Fitting Punishment
This is exactly the case when one individual injures another. The offender needs to understand the gravity of his actions. That is why the written text, the “father,” declares: An eye for an eye. In practice, though, he only pays monetary restitution, as the Oral Law rules. For the Oral Law is like the mother.
But he should not think that with money alone he can repair the damage he inflicted. How will not he think so? Only if the “father”—the written Torah—states in uncompromising terms “an eye for an eye; a tooth for a tooth; a wound for a wound.”
Azar was astounded. He was impressed how one can clarify legal concepts in Jewish Law by way of Kabbalistic metaphors. Azar remarked: “I once heard the Rabbi say that the boundaries between Halacha and Kabbalah, the exoteric and the esoteric areas of Torah, are not rigid. For some people, Torah with Rashi's commentary is an esoteric study; while for others, even a chapter in the Kabbalistic work Eitz Chayim belongs to the revealed part of Torah.”[11]
Here we have one example of how one verse in Torah, far from expressing the harshness of Judaism, actually served a blueprint to teach our people the infinite dignity of the human body carved in G-d’s image.
This we must teach the world.
________________
[1] It is interesting to note that The Code of Hammurabi is a well-preserved Babylonian law code of ancient Mesopotamia, dating back to about 1754 BCE. It is one of the oldest deciphered writings of significant length in the world. The sixth Babylonian king, Hammurabi, enacted the code, and partial copies exist on a human-sized stone stele and various clay tablets. The Code consists of 282 laws, one of them is: "an eye for an eye, a tooth for a tooth" (lex talionis). We do not know if the Lex Talionis of Hammurabi’s Code was carried out literally in ancient times. There are scholars who believe that the Code itself was not the law code by which the society operated, but rather the fulfillment of a so-called “divine mandate” by the gods to the king: a law code to prove he was divinely ordained to rule, but not one which was operative in ancient Babylon. Regardless, in Judaism “an eye for an eye…” was never understood literally.
[2] Many wondered why the Rambam came up with his own proof, not stated in the Talmud exploring this matter. The truth is that the source of the Rambam's proof is in Mechilta Derashbi Parshas Mishptim.
[3] See the details in Rambam Hilchos Chovel Umazik ch. 1.
[4] Question: How then can Rabbi Eliezer, in Talmud Bava Kama p. 83 interpret the verse literally? Many say that what Rabbi Eliezer means is that the perpetrator pays “demei mazik,” the worth of the limbs of the perpetrator, rather than the victim, thus conveying that in essence, it was his limb that had to be punished. See at length Torah Shlaimah to Mishpatim and Meluim to Mishpatim, in the chapter dedicated to this discussion.
[5] We can explain that this is the case where one man intended to kill his fellow, and then killed the woman by error. See Rashi to this verse for the two opinions on the matter. According to the Halacha, if one has the intention to kill someone and kills someone else, he is not killed.
[6] Gaon of Vilna in Torah Gems, volume 2, p. 151
[7] Talmud Bava Kama pp. 83-84. Here is just one excerpt from there: It was taught in a baraita: Reb Shimon b. Yochai says: "Eye for eye" means pecuniary compensation. You say pecuniary compensation, but perhaps it is not so, and actual retaliation by putting out an eye is meant? What then will you say where a blind man put out the eye of another man, or where a cripple cut off the hand of another, or where a lame person broke the leg of another? How can I carry out, in this case, the principle of retaliation of "eye for eye" seeing that the Torah says, “You shall have one manner of law,” implying that the manner of law should be the same in all cases? (Baba Kamma 84a).
[8] See at length Tanya Igeres Hakodesh ch. 29.
[9] The great 14th-century kabbalist Rabbi Menachem Rikanti in his commentary on Mishpatim explains, amazingly, the mystical meaning of this verse. A human body and all of its limbs reflect the Divine metaphysical “body,” known as “Adam Haelyon.” The body embodies the Divine attributes correlating to the various parts of one’s body. When one knocks out the tooth of another, he, so to speak, removes the spiritual “tooth” within the Divine source, and indeed loses the spiritual source of his tooth. If we can appreciate the Torah text also as a spiritual manual for the spiritual limbs of a person, then the verse actually also has a literal meaning.
[10] Tanya Igeres Hakodesh ibid.
[11] This story is recorded in Sapphire from the Land of Israel. Adapted from "Malachim Kivnei Adam" by R. Simcha Raz, pp. 351, 360.
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Essay Mishpatim/Emor
Rabbi YY Jacobson
- January 31, 2019
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- 25 Sh'vat 5779
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An Eye for An Eye? Really?
Why the Discrepancy Between the Written and Oral Traditions of Judaism?
Rabbi YY Jacobson
- January 31, 2019
Abuse of Human Rights
In recent years, we have become shockingly aware of the atrocities and abuses of human rights in many Muslim countries. The beheadings, the floggings, the stoning, the burnings, crucifixions, and diverse forms of torture are practiced daily, not only by ISIS, but in scores of Muslim countries.
I saw a video of a child in Iran being punished for apparently stealing something. They laid him on the ground and a car ran over his arm, amputating it. These and similar scenes of horror taking place in the 21st century are common in many Muslim countries, while most University protests are directed against Israel.
A Harsh Religion?
One of the more popular old polemics against Judaism is that our faith is harsh; it is a religion of cold and cruel laws, devoid of love and compassion. Christians used to present Christianity as the religion of love, and Judaism as the religion of stern revenge. The founder of Christianity supposedly said, “You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I say to you, ‘If anyone strikes you on the right cheek, turn to him the other.’”
This is referring to a law in the book of Exodus and Leviticus, Mishpatim and Emor. The Torah states that if two men become engaged in a brawl and one of them shoves a pregnant woman, causing her to miscarry, the man responsible must pay compensation, the amount to be determined in court.
22. And should men quarrel and hit a pregnant woman, and she miscarries, but there is no fatality, he shall surely be punished when the woman's husband makes demands of him, and he shall give [restitution] according to the judges' [orders].
כב. וְכִי יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה וְיָצְאוּ יְלָדֶיהָ וְלֹא יִהְיֶה אָסוֹן עָנוֹשׁ יֵעָנֵשׁ כַּאֲשֶׁר יָשִׁית עָלָיו בַּעַל הָאִשָּׁה וְנָתַן בִּפְלִלִים:
23. But if there is a fatality, you shall give a life for a life,
כג. וְאִם אָסוֹן יִהְיֶה וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ:
24. an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot,
כד. עַיִן תַּחַת עַיִן שֵׁן תַּחַת שֵׁן יָד תַּחַת יָד רֶגֶל תַּחַת רָגֶל:
25. a burn for a burn, a wound for a wound, a bruise for a bruise.
כה. כְּוִיָּה תַּחַת כְּוִיָּה פֶּצַע תַּחַת פָּצַע חַבּוּרָה תַּחַת חַבּוּרָה:
Clearly, it seems, the law is that if one of the men kills the woman, he dies. If he maims her, he receives in return what he did to her. “An eye for an eye… a wound for a wound.”
And yet, astonishingly, no Jewish court ever practiced this law, known in Latin as Lex Talionis, or the Law of Retaliation.[1]
The Proof of Maimonides
Maimonides, the 12th century sage, rabbi, physician, philosopher, leader, and the greatest codifier of Jewish law, writes:
רמב"ם הלכות חובל ומזיק א, ה: ומניין שזה שנאמר באברים "עין תחת עין . . ." (שמות כא,כד; ויקרא כד,כ), תשלומין הוא? נאמר "חבורה, תחת חבורה" (שמות כא,כה), ובפירוש נאמר "וכי יכה איש את ריעהו, באבן או באגרוף . . . רק שבתו ייתן, ורפוא ירפא" (ראה שמות כא,יח-יט). הא למדת ש"תחת" שנאמר בחבורה תשלומין, והוא הדין ל"תחת" הנאמר בעין ובשאר אברים.
He offers a wonderful proof:[2]
"An eye for an eye" covers two verses (Exodus 21:24-25), concluding a context of six verses (21:18-19, 22-25). If you view the verse in context, Maimonides argues, it is obvious that the Torah cannot be explained literally.
The chapter begins with a case of intentionally inflicted injury. It concludes with a case of accidental injury. The opening verses (18-19), on intentionally inflicted injury, read as follows:
18. And if men quarrel, and one strikes the other with a stone or with a fist, and he does not die but is confined to [his] bed,
יח. וְכִי יְרִיבֻן אֲנָשִׁים וְהִכָּה אִישׁ אֶת רֵעֵהוּ בְּאֶבֶן אוֹ בְאֶגְרֹף וְלֹא יָמוּת וְנָפַל לְמִשְׁכָּב:
19. if he gets up and walks about outside on his support, the assailant shall be cleared; he shall give only [payment] for his [enforced] idleness, and he shall provide for his cure.
יט. אִם יָקוּם וְהִתְהַלֵּךְ בַּחוּץ עַל מִשְׁעַנְתּוֹ וְנִקָּה הַמַּכֶּה רַק שִׁבְתּוֹ יִתֵּן וְרַפֹּא יְרַפֵּא:
The closing verses (22-25), on accidentally inflicted injury, quoted above, reads as follows: "And if men shall fight and collide with a pregnant woman and she miscarries but does not herself die, he [the fighting man] shall surely be punished, in accord with the assessment of [the value of the fetus]… But if there is a fatality, you shall give a life for a life; an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot; a burn for a burn, a wound for a wound…"
Asks the Rambam: We have a major contradiction. Here you tell me “a wound for a wound.” If I wound the woman, I must be wounded as I wounded her. But just three verses earlier you told me that if I wound my friend with a stone or my fist all I need to do is to cover all medical expenses and pay his wage as a result of him being unable to work. There is a blatant contradiction here, which renders the text completely senseless.
Thus, the rabbis conclude, that what the verse meant with the words “a wound for a wound,” or “an eye for an eye,” “a tooth for a tooth,” etc. is monetary compensation. If a person was hired to work for you for his entire life on all possible jobs, how much would the value decrease if he was missing an eye? That must be paid up, in addition to all of his or her medical expenses, and in addition to covering his or her wage during his illness, and in addition to paying for the pain and the humiliation. [3]
And then Rambam continues:
אף על פי שדברים אלו נראים מעניין תורה שבכתב, כולן מפורשין הן מפי משה מהר סיני, וכולן הלכה למעשה הן בידינו; וכזה ראו אבותינו דנין בבית דינו של יהושע, ובבית דינו של שמואל הרמתי, ובכל בית דין ובית דין שעמדו מימות משה ועד עכשיו.
Though this is obvious from the text itself, we have also heard this from Moses, who explained the text this way. So it was practiced in every Jewish court, in the court of Joshua, the court of Samuel, and in every Jewish court from the time of Moses to this very day.[4]
More Proofs
If we delve more into the text, we can see how convincing the argument is. The text says "And if men shall fight and collide with a pregnant woman and she miscarries but does not herself die, he [the fighting man] shall surely be punished, in accord with the assessment of [the value of the fetus]… But if there is a fatality, you shall give a life for a life; an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot; a burn for a burn, a wound for a wound…."
But what is the meaning of “life for life” if any harm follows? In this unintentional tragic mishap, can we seriously maintain that the Torah decrees the death penalty for the one who caused this accident? This is clearly an unfortunate circumstance for which the Torah set aside sites of refuge. Is the Torah contradicting itself and saying here that if you kill someone by mistake, you get killed? Obviously, then, the Torah is referring to money.[5]
What is even more convincing is when we view the context. In the case of intentionally inflicted injury, the Torah does not introduce the punishment of “an eye for an eye.” All that the Torah requires from the perpetrator is to pay for the time and medical expenses. This is contrary to the closing verse of an accidentally inflicted injury where the Torah introduces the phrase “an eye for an eye.” Can we really assume that if I hurt you intentionally, my punishment is only monetary; and when I wound you by err, they punish me by amputation? Logically one is forced to interpret here the meaning of “eye for an eye” as the value of an eye, meaning financial compensation.
Furthermore, if the Torah meant, taking the eye of the injurer for the eye of the victim, the Torah would have said so. But the Torah never says, "take an eye for an eye." The Torah says, “and you shall give… an eye for an eye.” Were the text's intention to extract an eye from the villain, the use of the word 'give' is inappropriate. The physical punishment of an “eye for an eye” is meant to take from the guilty, not to give to the victim. Giving implies something that is meant to reach the recipient. But if they take the eye of the perpetrator, what are they giving to the victim? Only monetary compensation fits that definition.
An Eye Beneath an Eye
The Gaon of Vilna offers a further brilliant insight. The Torah does not say, "an eye for an eye," It says, literally, "an eye beneath an eye." In correct Hebrew grammar, “an eye for an eye” should have been stated in these words: “ayin bead ayin,” instead of “ayin tachat ayin,” an eye beneath an eye. Why did the Torah not use the more appropriate “ayin bead (literally, for) ayin” instead of “ayin tachat” (literally, underneath)?
This hints to us that the punishment is beneath the eye. The three Hebrew letters for the Hebrew word ayin—“eye”—are ayin, yod, nun. If we take the letters that are directly “beneath” each of these letters, i.e., that follow them in the alphabet, we get the three letters pei, kaf, samech, which, when rearranged, yield the Hebrew word kesef, “money.”[6]
[Those of you who question the method of interchanging letters to get kesef from ayin might consider the classic Stanley Kubrick film 2001. The name of the computer in that film is HAL, which Kubrick derived from IBM, the letters that are immediately “beneath” the letters HAL in the English alphabet. This construct is called temurah.]
This truth is really expressed in the very word “tachat.” The word tachat connotes not identical substitution, but one item substituted for a different item. This strange phraseology of tachat is found in one other place in the Torah, in the Book of Genesis. After Abraham lifts his sword ready to sacrifice Isaac on Mount Moriah, he was suddenly told by the angel of G-d not to sacrifice Isaac, "Abraham went and took the ram and brought it up for a burnt offering instead of (tachat) his son." We see from here that tachat does not imply a duplicate substitution (retaliation), but rather implies monetary compensation.
The Talmud dedicates two pages in which nine of the greatest sages delve into the text and deduce that the meaning of the Torah is not physical punishment but monetary compensation. How, for example, could justice be served if the person who poked out his neighbor's eyes was himself blind? Or what if one of the parties had only one functioning eye before the incident? Clearly, there are many cases in which such a punishment would be neither equitable nor just.
In addition to this, how is it even possible to exactly duplicate bodily harm? Can you ever be sure it will be exactly an “eye for an eye”? [7]
Say What You Mean
Granted. But why doesn’t the Torah simply say what it means? If the Torah never meant to mandate physical punishment in cases of personal injury, why wasn’t the text more clearly written? A great deal of misunderstanding, misinterpretation, and trouble could have been avoided had the Torah simply stated, “The court shall levy the appropriate compensatory payment in cases of personal injury.”
Some even want to say that as society has become less barbaric, the rabbis reinterpreted the verse to mean one pays the damages for the eye, instead of actually taking out the eye of the perpetrator as it used to be done in the olden days. Yet this is simply untrue. Throughout all of Jewish history, we do not have a SINGLE RECORD of any Torah judge implementing “an eye for an eye!”
Two Perspectives
It is here that we come to discover the nuanced way in which Judaism has been presented. The biblical text is not a blueprint for practical law; the fact is that there is almost not a single mitzvah in the Torah that can be fully understood when reading the biblical text. Not Tefilin, not Esrog, not Matzah, not Sukkah, not Mezuzah, not Mikvah, not Shabbos, and not Shofar.[8] Thus, Moses presented an oral explanation for the biblical text so that we can appreciate its full meaning.
What then is the purpose of the biblical text? It describes not so much practical law, but rather the full meaning of a person’s actions from G-d’s perspective. Its words, written often in code, capture the full scope and meaning of every single action of a person, on the most spiritual, abstract level, all the way down to the most concrete plane.[9]
Maimonides, here again, comes to the rescue. In a few brief words, he shares a very profound and moving idea.
רמב"ם הלכות חובל ומזיק א, ג: זה שנאמר בתורה "כאשר יתן מום באדם, כן יינתן בו" (אמור כד, כ), אינו לחבול בזה כמו שחבל בחברו, אלא שהוא ראוי לחסרו אבר או לחבול בו כמו שעשה; ולפיכך משלם נזקו. והרי הוא אומר "ולא תקחו כופר לנפש רוצח" (במדבר לה, לא), לרוצח בלבד הוא שאין כופר; אבל לחסרון אברים או לחבלות, יש כופר.
Rambam, Laws of Personal Injuries 1:3: “The Torah’s statement ‘As a man shall inflict a wound upon a person, so shall be inflicted upon him’ does not mean that we should physically injure the perpetrator, but that the perpetrator is deserving of losing his limb and must therefore pay financial restitution.”
Apparently, the Rambam believes, as do many other scholars who echo the same sentiment, that the Torah confronts a serious dilemma as it moves to convey its deeply nuanced approach to cases of personal injury: using the tools at its disposal, how can Jewish law best reflect the discrepancy between the “deserved” and “actual” punishment?
An eye for an eye is the ultimate statement of human equality. Every person's eye is as precious as anyone else's. The eye of a prince is worth no more than the eye of a peasant. This was completely new in history, transforming the landscape of the moral language of civilization. (The Babylonian Code of Hammurabi, for example, legislated that the eye of a noble was of much greater value than the eye of a commoner.)
Had the Torah, however, mandated financial payment from the outset, the full gravity of the crime would not have been conveyed. The event would have been consigned to the realm of dinei mamonot, monetary crimes, and the precious nature of human life and limb would have been diminished.
The gravity of the crime is such that, on a theoretical level, on the level of “deserved punishment,” the case belongs squarely in the realm of dinei nefashot, capital law. The perpetrator may deserve the physical loss of a limb in return for the damage inflicted upon his victim. Torah law, however, will not consider physical mutilation as a possible punishment for a crime. The penalty must therefore be commuted into financial terms.
The Torah, therefore, proceeds to express, with delicate balance, both theory and practice within the law. First, the written text records the punishment for wounding your fellow, in terms of compensation. Then the Torah goes on to express the “deserved punishment” without any mitigation: “…an eye for an eye, a tooth for a tooth…” In this way, the severity of the crime is immediately made clear to all. The Oral Law serves as the vehicle of transmission, so we don’t err in practice.
Jewish law thus finds a way to memorialize both the “deserved” and the “actual” punishments within the halachic code.
No Atonement
Why is this so crucial? So that you never think that maiming someone’s body is merely a monetary issue, like breaking his watch. It is not! It is something you have no way of atoning for even if you pay him all the money in the world. Even if you did it by mistake, you can never compensate for it via finances alone.
It also teaches us the truth that there are no exceptions. An eye of a peasant child is no less of value than the eye of a powerful monarch. If I poke out that eye, I have done something for which there is no real way of atonement through money.
Maimonides more fully developed the idea that monetary restitution alone cannot atone for physical damages:
רמב"ם הלכות חובל ומזיק ה, ט: אינו דומה מזיק חברו בגופו, למזיק ממונו, שהמזיק ממון חברו, כיון ששילם מה שהוא חייב לשלם, נתכפר לו. אבל חובל בחברו, אף על פי שנתן לו חמישה דברים, אין מתכפר לו; ואפילו הקריב כל אילי נביות, אין מתכפר לו, ולא נמחל עוונו, עד שיבקש מן הנחבל וימחול לו.
"Causing bodily injury is not like causing monetary loss. One who causes monetary loss is exonerated as soon as he repays the damages. But if one injured his neighbor, even though he paid all five categories of monetary restitution — even if he offered to G-d all the rams of Nevayot [see Isaiah 60:7] — he is not exonerated until he has asked the injured party for forgiveness, and he agrees to forgive him.” (Rambam, Personal Injuries, 5:9)
When Your Animal Kills
We have another fascinating example for this a few sentences further in Parshat Mishpatim, where an even more glaring example of the discrepancy between theory and practice in the realm of punishment emerges. In this case, both variables are bluntly recorded in the written text itself.
As the Torah discusses the laws of a habitually violent animal owned by a Jew, two conflicting consequences appear in the text for the very same crime.
The Torah states that, under normal circumstances, if an individual’s ox gores and kills another human being, the animal is put to death but the owner receives no further penalty. If, however, the animal has shown clear violent tendencies in the past – to the extent that the owner has been warned yet has failed to take appropriate precautions – the Torah emphatically proclaims, “…The ox shall be stoned and even its owner shall die.”
But in the very next verse, the text offers the condemned man an opportunity to escape his dire fate through the payment of a financial penalty assessed by the court.
28. And if a bull gores a man or a woman and [that one] dies, the bull shall surely be stoned, and its flesh shall not be eaten, and the owner of the bull is clear.
כח. וְכִי יִגַּח שׁוֹר אֶת אִישׁ אוֹ אֶת אִשָּׁה וָמֵת סָקוֹל יִסָּקֵל הַשּׁוֹר וְלֹא יֵאָכֵל אֶת בְּשָׂרוֹ וּבַעַל הַשּׁוֹר נָקִי:
29. But if it is a [habitually] goring bull since yesterday and the day before yesterday, and its owner had been warned, but he did not guard it, and it puts to death a man or a woman, the bull shall be stoned, and also its owner shall be put to death,
כט. וְאִם שׁוֹר נַגָּח הוּא מִתְּמֹל שִׁלְשֹׁם וְהוּעַד בִּבְעָלָיו וְלֹא יִשְׁמְרֶנּוּ וְהֵמִית אִישׁ אוֹ אִשָּׁה הַשּׁוֹר יִסָּקֵל וְגַם בְּעָלָיו יוּמָת:
30. Insofar as ransom shall be levied upon him, he shall give the redemption of his soul according to all that is levied upon him.
ל. אִם כֹּפֶר יוּשַׁת עָלָיו וְנָתַן פִּדְיֹן נַפְשׁוֹ כְּכֹל אֲשֶׁר יוּשַׁת עָלָיו:
The written text itself seems bewilderingly contradictory. On the one hand, the Torah clearly states that the owner of a violent animal who killed another human being “shall also die.” Then, however, it says that he pays money to the heirs of the victim—the full “value” of the person as it were.
What is going on here? How can we take such a text seriously?
Once again, our question can be answered by considering the distinction between “deserved” and “actual” punishment.
The Torah wants us to understand that, on a theoretical level, the owner of the ox who killed a human deserves to die. His negligence has directly resulted in the loss of human life. On a practical level, however, this sentence cannot be carried out. Halacha only mandates capital or corporal punishment in cases of active crimes. Crimes of “un-involvement,” consisting of the failure to do something right, cannot carry such penalties in an earthly court. The owner who fails to guard his dangerous animal can only be fully punished through heavenly means.
Through carefully balancing the textual flow, the Torah manages to convey a complex, multilayered message of personal responsibility in a nuanced case of “un-involvement.”
Azar's Question
Yet it goes one step deeper.
During the years when Rabbi Avraham Yitzchak Kook (1865-1935) served as chief rabbi of Jaffa, before he became chief rabbi of Israel (then Palestine), he met and befriended many of the Hebrew writers and intellectuals of the time. His initial contact in that circle was the 'elder' of the Hebrew writers, Alexander Ziskind Rabinowitz, better known by the abbreviation Azar. Azar was one of the leaders of Po'alei Tzion, an anti-religious, Marxist party; but over the years, Azar developed strong ties with traditional Judaism. He met with Rabbi Kook many times, and they became friends.
Azar once asked Rabbi Kook: How can the Sages interpret the verse "an eye for an eye" as referring to monetary compensation? Does this explanation not contradict the peshat, the simple meaning of the verse?
True, as we recall, the Talmud brings a number of proofs that the phrase "eye for an eye" cannot be taken literally. But what bothered Azar was the blatant discrepancy between the simple reading of the verse and the Talmudic interpretation. After all is said and done, if an "eye for an eye" in fact means monetary compensation, why does the Torah not state that explicitly?
The Parable
Rabbi Kook responded by way of a parable. The Kabbalists, he explained, compared the Written Torah to a father and the Oral Torah to a mother. Just as the mother absorbs the seed of the father, and develops it into an embryo, and ultimately a full fetus, so the oral tradition develops and explains the seminal, brief and cryptic text of the written Torah.[10] When parents discover their son has committed a grave offense, how do they react—at least back in the 1920s when Rabbi Kook had this conversation with Azar. (Today, we know, things have changed somewhat; yet the principle behind this remains the same).
The father immediately raises his hand to punish his son. But the mother, full of sensitivity and compassion, rushes to stop him. 'Please, not in anger!' she pleads, and she convinces the father to mete out a lighter punishment.
An onlooker might conclude that all this drama was superfluous. In the end, the boy did not receive corporal punishment. The mother was triumphant. Her husband knew he has to listen to her. Why make a big show of it?
In fact, the scene provided an important educational lesson for the errant son. Even though he was only lightly disciplined, the son was made to understand that his actions deserved a much more severe punishment.
A Fitting Punishment
This is exactly the case when one individual injures another. The offender needs to understand the gravity of his actions. That is why the written text, the “father,” declares: An eye for an eye. In practice, though, he only pays monetary restitution, as the Oral Law rules. For the Oral Law is like the mother.
But he should not think that with money alone he can repair the damage he inflicted. How will not he think so? Only if the “father”—the written Torah—states in uncompromising terms “an eye for an eye; a tooth for a tooth; a wound for a wound.”
Azar was astounded. He was impressed how one can clarify legal concepts in Jewish Law by way of Kabbalistic metaphors. Azar remarked: “I once heard the Rabbi say that the boundaries between Halacha and Kabbalah, the exoteric and the esoteric areas of Torah, are not rigid. For some people, Torah with Rashi's commentary is an esoteric study; while for others, even a chapter in the Kabbalistic work Eitz Chayim belongs to the revealed part of Torah.”[11]
Here we have one example of how one verse in Torah, far from expressing the harshness of Judaism, actually served a blueprint to teach our people the infinite dignity of the human body carved in G-d’s image.
This we must teach the world.
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[1] It is interesting to note that The Code of Hammurabi is a well-preserved Babylonian law code of ancient Mesopotamia, dating back to about 1754 BCE. It is one of the oldest deciphered writings of significant length in the world. The sixth Babylonian king, Hammurabi, enacted the code, and partial copies exist on a human-sized stone stele and various clay tablets. The Code consists of 282 laws, one of them is: "an eye for an eye, a tooth for a tooth" (lex talionis). We do not know if the Lex Talionis of Hammurabi’s Code was carried out literally in ancient times. There are scholars who believe that the Code itself was not the law code by which the society operated, but rather the fulfillment of a so-called “divine mandate” by the gods to the king: a law code to prove he was divinely ordained to rule, but not one which was operative in ancient Babylon. Regardless, in Judaism “an eye for an eye…” was never understood literally.
[2] Many wondered why the Rambam came up with his own proof, not stated in the Talmud exploring this matter. The truth is that the source of the Rambam's proof is in Mechilta Derashbi Parshas Mishptim.
[3] See the details in Rambam Hilchos Chovel Umazik ch. 1.
[4] Question: How then can Rabbi Eliezer, in Talmud Bava Kama p. 83 interpret the verse literally? Many say that what Rabbi Eliezer means is that the perpetrator pays “demei mazik,” the worth of the limbs of the perpetrator, rather than the victim, thus conveying that in essence, it was his limb that had to be punished. See at length Torah Shlaimah to Mishpatim and Meluim to Mishpatim, in the chapter dedicated to this discussion.
[5] We can explain that this is the case where one man intended to kill his fellow, and then killed the woman by error. See Rashi to this verse for the two opinions on the matter. According to the Halacha, if one has the intention to kill someone and kills someone else, he is not killed.
[6] Gaon of Vilna in Torah Gems, volume 2, p. 151
[7] Talmud Bava Kama pp. 83-84. Here is just one excerpt from there: It was taught in a baraita: Reb Shimon b. Yochai says: "Eye for eye" means pecuniary compensation. You say pecuniary compensation, but perhaps it is not so, and actual retaliation by putting out an eye is meant? What then will you say where a blind man put out the eye of another man, or where a cripple cut off the hand of another, or where a lame person broke the leg of another? How can I carry out, in this case, the principle of retaliation of "eye for eye" seeing that the Torah says, “You shall have one manner of law,” implying that the manner of law should be the same in all cases? (Baba Kamma 84a).
[8] See at length Tanya Igeres Hakodesh ch. 29.
[9] The great 14th-century kabbalist Rabbi Menachem Rikanti in his commentary on Mishpatim explains, amazingly, the mystical meaning of this verse. A human body and all of its limbs reflect the Divine metaphysical “body,” known as “Adam Haelyon.” The body embodies the Divine attributes correlating to the various parts of one’s body. When one knocks out the tooth of another, he, so to speak, removes the spiritual “tooth” within the Divine source, and indeed loses the spiritual source of his tooth. If we can appreciate the Torah text also as a spiritual manual for the spiritual limbs of a person, then the verse actually also has a literal meaning.
[10] Tanya Igeres Hakodesh ibid.
[11] This story is recorded in Sapphire from the Land of Israel. Adapted from "Malachim Kivnei Adam" by R. Simcha Raz, pp. 351, 360.
- Comment
Dedicated by Menachem Yisroel Abrams in honor of his family: David Chai, Moshe, Dvora, Menashe Chaim, Bracha Esther, Rachel, Yenon, Batya, Liev David, Mazal Yishua, Ayala & Emma.
Class Summary:
Why the Discrepancy between the Written and Oral Traditions of Judaism?
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pinny -3 years ago
Great essay last week “an eye for an eye…”.I actually studied it with my chevre and used it for the basis of a series of classes this week.
Just want to share with you for future reference on this topic in case you ever like to useYou can google for more info and accuracy but the idea is exactly what you discussed
The monetary gain was allot greater than the crime - so why not poke out the eye if you have the money?
The 2021 Super Bowl "streaker" won $374,000 after placing a $50,000 prop bet that someone would streak during the game.
I believe he was arrested for trespassing, paid $1000 bail, and is not getting the money b/c he bet on himself
but the idea is there
Hatzlacha
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Elliot -5 years ago
Disagree
Rambam guide part 3 is clear the Torah meant an Eye for an Eye.
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Shalom Olensky -5 years ago
Yasher ko'ach
BH
Yasher ko'ach gadol. The world needs you and this wonderful work of yours. Bravo! Keep it up.
May G-d Almighty bless you with much much success materially and spiritually, in your public life as well as in your personal life.
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