“An Eye for an Eye”

  • Harav Yaakov Medan

Translated by Kaeren Fish

 

 

If men strive and hurt a pregnant woman, such that she miscarries, but no further harm ensues, then he shall be surely punished, as the woman’s husband lays upon him, and he shall pay as the judges determine. But if harm ensues, then you shall give life for life; eye or eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, bruise for bruise. (Shemot 21:22-25)

 

What is the meaning of the Torah’s command, “eye for eye”? Does it mean that we put out the eye of the perpetrator of the injury, as punishment for having injured the victim? Or does it refer to monetary compensation in the value of an eye, to the extent that we are able to estimate its value?

 

Josephus, in his Antiquities of the Jews, cites an interpretation or tradition from the Second Temple Period according to which both possibilities exist, with the decision lying in the hands of the injured party. If he seeks revenge, the perpetrator’s punishment will be to lose his eye, his hand, etc. If the injured party prefers to receive compensation, the punishment can be exchanged for monetary payment:

 

One who causes an injury to his fellow shall pay him, measure for measure, and lose that same limb of which he deprived his fellow – unless the one who was injured prefers to receive monetary compensation. For the law empowers the victim himself, giving him license to assess the damage caused to him, if he does not wish to be extremely hard-hearted. (Josephus, Antiquities of the Jews, Book IV, 7:34)

 

This suggests that it is proper for the victim to accept monetary payment rather than insisting on corporal punishment for the injurer.

 

Indeed, we find in Megillat Ta’anit:

 

“The Book of Decisions”: for the Boethusians (Sadducees) used to say, “Eye for eye, tooth for tooth” – if a person knocked out his friend’s tooth, then his own tooth should be knocked out; if he blinded his friend, he too should be blinded, such that they will be equal. (4 Tammuz, Megillat Ta’anit)

 

It seems, then, that Josephus’s testimony preserves a Sadducee tradition of which he was particularly fond. Later, he writes:

 

And especially being that the Pharisees were milder in their punishments… (Antiquities, Book 13)

 

And he belonged to the sect of the Sadducees, who are stricter in their judgment than all the Jews… (Antiquities, Book 20)

 

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It may be that Chazal themselves are divided in this regard. We find the opinion of R. Eliezer cited in a beraita:

 

It was taught: R. Eliezer said: “Eye for eye” – literally. (Bava Kama 84a)

 

However, the gemara rejects this possibility and explains the beraita in all sorts of ways in an attempt to show that this interpretation is not correct.

 

According to the other Tanna’im and Amora’im, the idea of disabling one person’s limb as a response to his disabling of someone else does not exist in the Torah.[1] They maintain that the Torah speaks only of monetary compensation for the loss of the limb. The logic and morality of this interpretation are clear and speak for themselves.[2] However, is it possible to reconcile Chazal’s interpretation with the plain reading of the text, which states explicitly, “eye for eye”? The gemara offers several justifications for reading “eye for eye” as referring to monetary compensation. Below are the main reasons, and we shall add some of our own.

 

  1. In Sefer Vayikra we find:

 

He who kills a beast shall pay compensation; a life for a life (nefesh tachat nefesh). (Vayikra 24:18)

 

There are three theoretical possibilities for understanding this verse: a) The person should be put to death for killing the animal; b) an animal belonging to the person should be put to death for the animal that he killed; c) the person pays an animal (or its value) for the animal that he killed.

 

Clearly, only the third possibility makes sense. Thus, the words “a life for a life” and similar expressions may be understood not only in literal terms, as referring to a life or limbs, but also to monetary compensation. Chazal – for obvious reasons relating to the spirit of the Torah and its general guidance – prefer this interpretation. This accords with another law that we find in our parasha concerning the punishment in the case of an ox that was known to be violent, and that gored another ox: “He shall surely pay an ox for an ox” (Shemot 21:36).

 

2. Furthermore, we find the following law:

 

And if a man maims his neighbor, as he has done – so shall it be done to him; breach for breach, eye for eye, tooth for tooth; as he has maimed a man, so shall it be caused to him. (Vayikra 24:19-20)

 

The seemingly superfluous repetition – “so shall it be done to him,” “so shall it be caused to him” – demands some explanation, and alludes to two possible solutions for punishing someone who injures his fellow.[3] Both possible solutions involve damage – either physical injury or monetary payment. Chazal, and the Torah itself, prefer the second possibility, as we shall see below.

 

3. Concerning a murderer we read:

 

Moreover you shall take no ransom for the life of a murderer who is guilty of death; for he shall be surely put to death. And you shall take no ransom for one who has fled to the city of his refuge, that he should come back to dwell in the land, until the death of the Kohen. (Bamidbar 35:31-32)

 

The Torah takes the trouble to prohibit explicitly the taking of a ransom for someone who murdered, instead of putting him to death, and for someone who killed by accident, instead of exiling him to a city of refuge. This suggests that in any other situation – even if a person is punishable by death or by losing a limb – there is a possibility of paying a ransom and avoiding death or amputation of the limb. Indeed, we find in the unit concerning the owner of an ox known to be violent, where the owner did not guard the ox properly and the ox killed a person:

 

But if the ox gored in the past, and his owner had been warned, but he did not keep him in, and it killed a man or a woman, the ox shall be stoned, and its owner also shall be put to death. If a sum of money is laid on him, then he shall give for the ransom of his life whatever is laid upon him. (Shemot 21:29-30)

 

We may say that Chazal arrived at the ultimate intention of the Torah – that the moment there is a choice between death or amputation, on the one hand, and monetary compensation, on the other, a person is obligated to choose the latter, on the basis of the principle, “And you shall choose life” (Devarim 30:19), and “in order that a man shall do them and live” (Vayikra 18:5). The theoretical possibility of choosing death or amputation is denied him on the operative level,[4] and all the more so when he chooses death or amputation because he lacks the funds to pay, in which case he will owe the money but we will not permit the alternative solution.[5] This suggests that there are three theoretical stages: the first stage entails the killer or perpetrator of the injury being sentenced to the same fate himself; the second stage is the Torah’s recognition of exchange of this punishment for monetary compensation; the third stage is that the perpetrator now becomes obliged to avail himself of this compassionate solution offered by the Torah.

 

On this basis, we may better understand the punishment meted out to Adam following his sin in eating of the Tree of Knowledge of good and evil. At first, it is decreed that he will die. But God replaces this punishment with banishment from the Garden of Eden, because God wants him to live.

 

4. Two Sages of the mishna (Bava Kama 84a) note, by means of different teachings, that a literal implementation of the rule of “eye for eye” might lead to a punishment far removed from true justice. The most familiar example is a case in which a person who sees with only one eye blinds one eye of someone else who had two healthy eyes. Removing the eye of the perpetrator would render him completely blind. However, a result that is far from true justice would emerge even in less extreme cases – for example, when a manual laborer amputates the hand of a teacher, who does not rely on his hands for his livelihood. In truth, even monetary compensation cannot be entirely fair, since the law is the same whether the perpetrator is rich or poor. However, at least the natural injustice will not be at the level that it would have been had he been punished with death or amputation. Moreover, even if we were to contemplate corporal punishment, how could we ensure an exact measurement of “a bruise for a bruise,” of exactly the same size, severity, etc. as that caused to the victim?

 

5. The sugya in the gemara also mentions the danger of death arising from the amputation of a hand or foot, or from the putting out of an eye, and it is difficult to imagine that the Torah would countenance such a danger. Admittedly, administering the punishment of lashes also entails a certain danger, but the danger of amputation is immeasurably greater.

 

6. Concerning a person who maims his fellow we read:

 

And if men strive together, and one smites the other with a stone or with his fist, and he does not die, but becomes bedridden – if he rises again, and walks about upon his staff, then he that struck him shall be acquitted; he shall pay only for the incapacitation, and shall cause him to be thoroughly healed. (Shemot 21:18-19)

 

Here, the perpetrator of the injury is obligated only to pay; he compensates the victim for time (the number of days he cannot work) and medical costs. If, on the basis of our unit, which follows this one, he were obligated to pay “eye for eye” in the literal sense, then we would certainly not be able to demand that he pay also for incapacitation and medical costs, since the point of “eye for eye” is that he pays “measure for measure” and not more than that. Seemingly, we might propose that compensation for loss of income and medical costs apply when there is no permanent maiming of a limb.[6] But in the unit of “eye for eye,” the Torah also stipulates, “wound for wound, bruise for bruise” – and when one struck his neighbor with a stone or with his fist, he must surely have caused a wound or a bruise. If he is then punished by having a bruise inflicted on him, how can he be expected to pay for loss of income and medical costs in addition?

 

7. In addition to all the explanations suggested above, Ibn Ezra (citing R. Sa’adia Gaon) and Ramban also cite the tradition of Chazal:

 

The general rule is that we cannot arrive at the full meaning of the commandments of the Torah without relying on the teachings of Chazal. For just as the Torah was handed down to us by our forefathers, so we also received the Oral Law, and there is no difference between them. (Ibn Ezra, Shemot 21:24).

 

And the general rule is that the received tradition is the truth in every instance. (Ramban ad loc.)

 

8. We may also propose another reason that is not given in the gemara. The Torah states the law of “eye for eye” in our parasha in the context of two men striving between them with the accidental injury of a pregnant woman as a result. In explaining this verse, R. Shimon understands that the person who caused the injury is considered as having done so accidentally, since his intention was to strike the other man, not the woman who happened to be passing by. His view accords well with the plain meaning of the text.[7] He maintains that the Torah is talking about someone who kills unintentionally or who injures unintentionally. If someone who kills accidentally is “merely” exiled to a city of refuge, but receives no corporal punishment, then how can it be that someone who maims the foot of someone else is punished by having his own foot amputated or maimed? If, on the other, the law involves monetary compensation, then it is certainly proper that someone who caused an injury unintentionally, but in a manner that was close to being intentional, should pay compensation.

 

9. One last explanation to conclude our discussion: The gemara concludes that the “boughs of thick-leaved trees” (Vayikra 23:40) referred to in the Torah as one of the four species to be taken up on Sukkot is the myrtle. There is a different possibility that is suggested but rejected:

 

Perhaps this refers to the oleander? Abaye said: [The oleander] does not [conform to the definition of the Torah:] “Its ways are ways of pleasantness.” (Sukka 32b)[8]

 

In other words, when there is a possibility of identifying “boughs of thick-leaved trees” as a type of tree that is pleasant to touch (the myrtle) or as one that is thorny and unpleasant to touch (the oleander), the operative guidance is that we view it as the more pleasant option. A similar principle would seem to apply to our discussion, concerning punishment for someone who injures someone else. When there are two possible ways of understanding the verses, we must adhere to the understanding that reflects Divine compassion and actual benefit, rather than the understanding that reflects only revenge and suffering.

 

*

 

Let us make a further assumption with regard to the ambiguity of “eye for eye” – meaning, the question of whether the punishment is corporal or monetary. It may be that the Torah intentionally places the decision here in the hands of the Sages of the Oral Law, not necessarily as an exegetical approach, but rather in the practical sense. In a routine, albeit most unfortunate, instance of a person losing an eye or a hand in an accident or in a fight, the Sages will tend towards the compassionate possibility of monetary payment for the loss of the limb. But in special situations – such as when in a particular place at a particular time there is a social phenomenon of violent arguments, or where a specific person is especially violent and is repeatedly involved in violent arguments despite repeated warnings, perhaps the Sages have the ability to interpret the verses according to the stricter view, as part of the Torah’s intention from the start.

 

But can we imagine that the Sages would ever agree – even in extreme circumstances – to amputate a limb? It turns out that they would:

 

R. Huna said: Let his hand be cut off, as it is written, “Let the uplifted arm be broken.” [And indeed,] R. Huna cut off a [transgressor’s] hand. (Sanhedrin 58b)

 

The Tosafot and Tosafot Ha-Rosh explain that R. Huna actually had the violent man’s hand cut off as the proper implementation of the law; he did not fine him, as Rashi understands it, or cut off his hand as an exceptional case, as the Meiri explains. We likewise fine in the medieval responsa:

 

As for one who strikes his wife, it seems to me that he should be treated with greater stringency than someone who strikes his friend, for one is not obligated to honor his friend, but he is obligated to honor his wife. And it is the way of the non-Jews to behave in this manner, but heaven forfend that any Jew act in such a way. One who does so should be excommunicated and isolated and subject to lashes, and punished with every sort of sanction, and even to cut off his hand if he customarily acts in this way. (Responsa of Maharam of Rothenburg, part IV)

 

Rabbenu Yerucham follows in the footsteps of Maharam of Rothenburg, prescribing strict punishment for one who customarily beats his wife:

 

And if the husband injured her, the beit din is able to afflict him and excommunicate him, isolate him, and subject him to lashes and punish him with every sort of sanction, and to cut off his hand if he customarily acts in this way, even in Babylon [i.e., outside Israel], just as R. Pappa cut off a man’s hand. For this is not proper [conduct] for a Jew, who is obligated to honor his wife more than himself; “she ascends with him [according to halakha, if he goes to the Holy Land,] but is not required to descend with him [if he leaves the Holy Land].” This [behavior] is the way of non-Jews. For the Torah said, “For she was the mother of all living things” – she was given for life, not for suffering. Or he should let her go, paying her ketuba. And so the Ramah writes in his responsum. (Rabbenu Yerucham, Sefer Mesharim, netiv 23, part 5)

 

The Or Zaru’a arrives at a similar ruling concerning a person who is regularly violent:

 

And if the person who strikes behaves in this way regularly, then [it is permissible] even to cut off his hand – and if it is possible to have this done by the non-Jewish government, that should be done – as R. Huna cut off a perpetrator’s hand. (Responsa of the Or Zaru’a 142).

 

Although these responsa do not reflect the general ruling of the Torah, but rather represent exceptional measures for exceptional cases, they may have been based on the verses in our parasha.

 

 

 


[1]  It does exist, for example, in the Code of Hammurabi, an ancient Babylonian king: “(196) If a man puts out the eye of another man, his eye shall be put out. (197) If he breaks another man’s bone, his bone shall be broken… (200) If a man knocks out the teeth of his equal, his teeth shall be knocked out.” According to this code, the payment of monetary restitution instead of having the same injury done to him exists only in the case in which the perpetrator injured someone of a lower social status. However, in some other ancient legal codes (Laws of Eshnunna, among others) monetary compensation is considered sufficient.

[2]   Ibn Ezra (Shemot 21:24) addresses this subject at length, citing a long and very interesting debate between R. Sa’adia Gaon (representing the view of Chazal) and a Karaite commentator of his generation, who argued for the literal interpretation.

[3]  Here the reader will note that I have followed the gemara in Bava Kama, but my interpretation differs slightly, adhering more closely to what I understand as the peshat of the verses. The gemara seems to suggest that the idea of monetary compensation is derived from the superfluous phrase in the verse and the fact that the same idea is expressed twice. My interpretation suggests that the text may be hinting to different alternatives. Likewise, I have explained the other opinions in the spirit of Chazal’s orientation but in a way that appears to me to be closer to their peshat.

[4]  Ramban understands Ibn Ezra as maintaining that the possibility of amputation or death is real. Seemingly, this possibility parallels the quotes above from Josephus in his Antiquities. However, according to this understanding of Ibn Ezra, the choice between amputation and payment lies with the perpetrator of the original injury, while in Josephus’s description the choice lies with the injured party, such that he holds the key to the perpetrator’s fate. In the language of Ibn Ezra as we have it, it is not quite clear whether this is indeed what he means.

[5]  Note that in the Hammurabi Code, a thief pays ten times the value of the item he stole, and if he cannot pay he is put to death. No such possibility can be countenanced in the Torah.

[6]  Ramban attempts to propose such an explanation; see his commentary.

[7]  His view differs from that of Chazal in Sanhedrin (79a). According to Chazal, the person who struck the pregnant woman is considered as having injured her intentionally, because someone who meant to kill a certain person but actually killed someone else instead is considered as having murdered intentionally. As noted, the plain meaning of the text appears to be more closely reflected in the view of R. Shimon.

[8]  The gemara gives the same reason for rejecting a possible identity for “branches of palm trees” (Vayikra 23:40).