The Law of ‘Lex Talionis’ in Parashat Emor
Our parasha ends with the repetition of one of the Torah’s most well-known phrases:
Anyone who kills a human being shall be put to death. Anyone who kills an animal shall make restitution for it, life for life. Anyone who maims another, what he inflicted will be done to him: fracture for fracture, eye for eye, tooth for tooth; what injury he gave to another will be given to him. One who kills an animal shall make restitution for it; but one who kills a human being shall be put to death. (Leviticus 24:17-21)
In previous shiurim, we have discussed the placement of these verses as part of larger structure and message in the episode of the blasphemer. In this shiur, we are going to deal with two different issues – the meaning of the rule “eye for eye," the principle of lex talionis, and whether any differences exist between its placement here and in the previous placement in parashat Mishpatim.
The first issue that we must confront is the actual meaning of the words “eye for eye." While colloquially we state "an eye FOR an eye," that is not the literal meaning of the test. A better translation (though not helpful) would be "an eye under an eye." Since this meaning does not make any sense, we shall turn to other appearances of the word “tachat” to deduce its meaning:
And Adam was once again intimate with his wife and she had a son. And he called his name Shet, 'for God has provided me with other offspring tachat Hevel - in place of Hevel - for he was killed by Kayin. (Bereishit 4:25)
Avraham lifted his eyes, and behold a ram was entangled in the brush by the horns, and Avraham went and took the ram, and offered it as an offering tachat b'no - in place of his son. (Bereishit 22:13)
"The men [spies] said to her [Rachav], 'Our lives for (tachat) yours!'" (Yehoshua 2:14)
Though the word tachat could be translated literally as "under" or "for," neither of these translations works well in this context. Rather "in place of," "instead of," or "as a replacement for" is clearly the best definition. Shet was born ‘to replace’ the murdered Hevel, the ram replaced Yitzchak on the altar. The spies told Rachav that if she keeps their secret then they will place their lives to be killed in order to save hers. They promised to die so that she will not perish!
A final, definitive proof of this understanding comes from the story of Shimshon burning the crops of the Pelishtim in revenge for the taking of his wife. In Shoftim 15:11, Shimshon said, "As they did to me, so I have done to them." However, he did not do the exact same thing to them as they did to him. The Phillistines had taken Shimshon's wife and given her to another man. In response, he burned their fields. This phrase is parallel to our parasha’s statement “what injury he gave to another will be given to him.”
As such, while the connotation of "an eye for an eye" is that the punishment for removing an eye is that that the perpetrator's eye will be put out (indeed, the Code of Hammurabi, which mandated lex talionis, literally prescribing punitive removal of an eye), we note that not only has normative Jewish law never interpreted this commandment in this manner, it understands that the verse dictates monetary restitution. What the Torah mandated was the replacement of the eye – as if it stated, “[the value of an] eye in place of an eye."
We can also deduce the true meaning of our passage by referencing other laws that explicitly deal with the question of physical punishment and payment. Bemidbar states, "Moreover you shall accept no ransom for the life of a murderer who is subject to the death penalty. (Bamidbar 35:31)" Why would anyone think that a court would accept a ransom for a murderer's life? When did the Torah ever suggest that payment could replace physical punishment? The Talmud deduces from here that this verse tells us that ONLY in regard to a murderer can the court not accept payment; however, for other bodily harm, the court does accept payment (Bava Kama 83b).
Let us quickly examine how two of the early commentators dealt with this issue. The Ibn Ezra, in parashat Mishpatim, writes as follows:
“Eye for eye”: Rav Saadya said we cannot take this text literally. For if a man deprived his fellow of a third of his normal eyesight by his blow, how can the retaliatory blow be so calculated as to have the same results, neither more nor less, nor blinding him completely? Such an exact reproduction of the effects is even more difficult in the case of a wound or bruise which, if in a dangerous spot, might result in death. The very idea cannot be tolerated. Ben Zuta (a Karaite) retorted: But surely it is explicitly written: (Lev. 24:20) As he has maimed a man so shall it be rendered to him. The Gaon answered: The word on, implying so shall punishment be imposed upon him. Ben Zuta retorted: As he did, so shall be done to him! The Gaon replied: We have in the case of Samson (Judges 15:11): As they did to me, so I did to them, and Samson did not take their wives and give them to others (as they had done to him, but only punished them. Ben Zuta retorted: What if the attacker was a poor man, what would be his punishment? The Gaon replied: What if a blind man blinded one with normal eyesight, what should be done to him? The poor man can become rich and pay; only the blind man can never pay for what he did!
To sum up: We cannot give an adequate explanation for the precepts of the Torah without relying on the words of our Sages. For just as we received the written Torah from our forefathers, so we received the oral Torah – there is not any difference between them. (commentary to 21:24)
In our parasha, the Ibn Ezra revisits the words of Rav Saadia Gaon:
“So shall be done to him” Samson similarly said: “as they did to me so I did to them” (Judges 15:11). The Gaon adduced common sense arguments showing that breach for breach cannot be taken literally (but only monetary compensation is indicated), since the original blow was inflicted inadvertently. How then can an identical blow be deliberately inflicted? And if administered on a dangerous spot, the victim might die. The same applies to the eye. If the victim was deprived of a third of his sight, how can such a defect be exactly reproduced in the striker? But the view of tradition is correct that a monetary equivalent is meant. As for the argument, what if the inflictor is poor? Our answer is: the text speaks of the usual case, and furthermore, the poor man may become rich. Their argument may also be countered by the case of the blind man who blinded a person with normal sight. (commentary to 24:19)
The Karaite attacked the rabbinic interpretation on two counts. The first time, he attempted to discredit the traditional understanding from the wording of the text, only to have Rav Saadia Gaon demonstrate that the two phrases do not necessarily bear out the Karaite’s interpretation. The proof from the episode of Shimshon clearly indicates that the phraseology when… implies an equivalent or analogous, but not identical punishment. With this, the Karaite forsook arguing from the text’s wording and attempted to attack the rabbinical interpretation based on its feasibility. Unwittingly, however, his objection could be raised against all judicial fines. Just as he asked: What if the attacker is a poor man, so he could have asked: What if any defendant on whom a fine was imposed was a poor man? He thus played into R. Saadia’s hands by showing him that the same flaw in execution that could be pointed out in the monetary interpretation could be objected in the literal one.
The Rambam, in his halakhic work the Mishneh Torah, presents forth three arguments why the verse could not have been taken literally. Both his first arguments are based on tradition: The interpretation of this verse has always been taught from the authoritative Oral Tradition, namely that one pays money for these types of damages. This understanding has its origin from Har Sinai and was taught and explained to Moshe, and in turn by Moshe, in this manner.
The Rambam's second argument is more helpful to our current discussion by considering the broader context of parashat Mishpatim, bringing to bear verses in an earlier section of the Torah that deal with bodily damages. Our verse is composed of several parts, including instructions for other cases of physical damage: "An eye tachat an eye, a tooth tachat a tooth, a hand tachat a hand, a leg tachat a leg." This is a list of physical wounds. However, the Rambam points out that the Torah dealt with wounds a few verses earlier:
If men struggle and one man hit his friend with a rock or a fist, and (the victim) does not die, rather he is incapacitated. If he gets up (lives) and walks on his own, the one who struck will be exonerated (of a capital charge); he will pay only damages of lost wages and medical expenses.
This clearly states that the "price" of damaging one's friend is financial, not corporal. As such, we must interpret the word "tachat" within the context of these adjacent verses as referring to financial restitution.
Using the Rambam’s approach and by looking at the context of each of the two appearances, we can begin to discern why the Torah felt the need to repeat the principle of “eye for eye” again in our parasha. The passage in Shemot begins in verses 18-19 with two individuals quarreling and then one injuring the other (followed by verses 20-21 that discuss intentional damage to a slave). In the case of intentional damage, the punishment is that the punishment is "the assailant shall be free of liability, except to pay for the loss of time, and to arrange for full recovery." Despite the intentional nature of the attack, the punishment is purely financial. However, verses 22-25 discuss the case of two people who are fighting and accidentally hurt a third party. In this case of accidental damage, the punishment is an "eye for eye, tooth for tooth, hand for hand..." Clearly, there is no logical manner that the Torah would prescribe that an intentional injury is only punished with monetary damages, while the punishment for an accidental injury is the corporal maiming of the unintentional assailant.
In our parasha, however, there is no hint of unintentional behavior. Instead, the laws here clearly refer to the deliberate injury of another. However, there is another issue identified in our section - "one law there shall be for you." For justice to be served, there must be equal treatment for all assailants. This lead to the logical issues raised in the Ibn Ezra’s commentary. How would the Torah react if a blind man blinded another, or if a man with no legs damaged someone else's legs? They have no legs or eyes with which to be punished. If “an eye for an eye" is understood literally, then there is no equity among assailants. In order to Torah’s mandate of "an eye for an eye" from conflicting with Vayikra’s issue to give out equal punishments, the phrase "an eye for an eye" can only refer to monetary punishment.