'An Eye for an Eye'
The Ramban (13th century, Spain) introduces his commentary to the Parasha of Mishpatim with the following synopsis: "And these are the laws which you shall place before them" – "the Divine intent was to present the people with these laws immediately after the Revelation at Sinai. Recall that the first of the Ten Utterances concerned recognition of God and the second prohibited idolatry. After that theophany had taken place, God reiterated these ideas: 'you yourselves saw that I spoke to you from heaven' (Shemot 20:19) parallels the First Utterance of 'I am the Lord.' 'You shall not fashion gods of silver or gold' (Shemot 20:20) recalls the Second Utterance that prohibited idolatry. These laws about to now be presented continue the theme of 'Thou shall not covet.' For if a person is ignorant concerning the laws of the house, the field, or other forms of property, he might imagine to himself that they are his, and then covet them and seize them. Therefore, God commanded Moshe to place these laws before the people, so that they will behave with uprightness and not desire that which does not belong to them. Similarly in the Midsrash Rabba it is stated: 'The entire Torah is predicated on justice, and therefore God presented these laws after the Revelation of the Ten Utterances.' Thus, these laws that follow speak of the prohibition of idolatry, of the obligation to honor one's parents, and of the prohibition of murder and adultery, all of which are mentioned in the Ten Utterances."
Laws form the foundation of every functioning society. The rule of law ensures that individuals respect each other's person and property, and behave responsibly when in a social context. When mishap or damage does occur, whether by premeditation, foreseeable negligence, or accident, laws regulate restitution and impose punishment as appropriate. The Ten Utterances are universally regarded as fundamental principles and yet, the Ramban informs us, they are insufficient in and of themselves to create a moral and law-abiding society. "Thou shall not covet" is an upright and virtuous injunction, a majestic vision expressed with a remarkable economy of words, but in the absence of practical and detailed guidelines that spell out its parameters, it remains an exalted slogan with little hope of realization. Thus, fast on the heels of the Ten Guiding Principles presented in last week's Parasha, the Torah presents the Law Code of Parashat Mishpatim, a series of statutes that forms its natural continuation.
Civil Law and Ritual Observance
Considering the Ten Utterances or the Parasha of Mishpatim, we at once notice a feature common to both that is striking as well as unique. Civil law on the one hand, and ritual law or exhortation to religious excellence on the other, are presented not as disparate and discrete disciplines but as organically related parts of a complete system. Thus, in the case of the Ten Utterances, laws of idolatry or Sabbath observance are juxtaposed with laws of murder or theft. In the much lengthier Parasha of Mishpatim, laws of slavery, torts or loans are presented in proximity to laws of forbidden foods, sacrifices, or holidays. This type of commingling is unparalleled in any other 'code' of law that has come down to us from antiquity. All of the ancient Near-Eastern compilations of law, for example, treat civil law and ritual law as two completely distinct frameworks that are invariably presented as independent literary works.
The implication of this fact is staggering, for it suggests that the ultimate motive for the observance of rational and reasonable civil laws is synonymous with the driving force that enjoins observance of the ritual and religious injunctions: the authority of a Transcendent God. There is therefore no intrinsic difference between both realms for they are complementary halves of a complete whole. The desire to bifurcate social law from ritual, to swear allegiance to a 'Prophetic Judaism' while denigrating or downgrading ritual observance, is founded upon a faulty premise that paradoxically is apt to remove God from the equation.
We tend to accept civil law as more valuable and meaningful because it makes sense. Ritual, on the other hand, often defies easy and straightforward rational enquiry and therefore we discard it with greater ease. Fundamentally, however, the structure of our Parasha demonstrates that the legitimacy of both is predicated upon the very same premise. The religious core that animates sincere ritual observance also constitutes the soul of an impassioned crusade for social justice. Conversely, if social laws are meaningful only because their value is rational and obvious and not because they are the commands of an absolute Deity, then such laws can never be the vehicles for the spiritual transformation of the human being. Put differently, the same Hebrew prophets who were filled with burning indignation for the plight of the widow, orphan and stranger, also inveighed against idolatry and the desecration of the Shabbat. The ideal student of the Torah is therefore meticulous in his/her relationship with other people and their property, as well as being scrupulous with respect to the ritual laws.
The Literal Reading
Let us keep this critical binary relationship between civil law and ritual observance in mind as we examine one of the most misunderstood and maligned laws of this Parasha. A literal and superficial reading of its contents has served as a pretext to accuse the Torah of primitive vengefulness, and the God of the Hebrews of vindictiveness. The issue of which we speak is presented in a section that relates the case of injury inflicted upon an innocent bystander to a violent dispute: "If two men strive together, and strike a pregnant women who consequently miscarries, but no other tragedy ensues, then they shall be fined according to the claim filed by the husband in court. But if her tragic death follows, then you shall give one life for another. An eye for an eye, a tooth for a tooth, a hand for a hand and a foot for a foot. A burn for a burn, a wound for a wound, and a bruise for a bruise."
This passage presents many difficulties of exegesis, but the most glaring one concerns the apparent legal sanction if not outright support for the so-called 'lex talionis' or law of retaliation. That is, taken literally, the verses seem to indicate that if one inflicts an injury upon another, the Torah mandates that a similar injury be inflicted upon the perpetrator. This form of 'justice' strikes us as barbaric and primitive, appealing to the baser passions of the victim and society, rather than attempting to inculcate a higher degree of civilized behavior.
The Traditional Reading – The Rational Argument
It is essential to bear in mind that the unanimous consensus of the early sources such as the Mishna, Midrashei Halakha, and Talmud, as well as that of the later commentaries, is that the passage in question is not to be understood literally. There is not a single source or opinion to be found in the vast corpus of traditional Jewish writings, early or late, halakhic or homiletic, that argues for a literal application of the principle. For the purposes of simplicity, we shall quote at length from the words of Rabbi Avraham Ibn Ezra (12thcentury, Spain), but much of his evidence is in fact based upon the earlier sources. In general, it may be said that the rejection of a literal interpretation is predicated upon rational and ethical considerations, but can also be convincingly supported by recourse to textual analysis and investigation of parallel sources.
Ibn Ezra writes:
"'An eye for an eye' – Rabbi Saadiah (10th century, Babylon) explained that we cannot explain this verse literally, for if a man struck the eye of his fellow and caused a vision loss equal to 1/3, how will it be possible to inflict precisely the same injury on the perpetrator, without neither excess nor deficiency? The wound and the bruise present an even more difficult situation, for if the initial injury was sustained close to a vital organ, perhaps the retaliatory strike will result in the death of the perpetrator. Reason does not tolerate a literal interpretation of this verse!"
Here, Ibn Ezra maintains that reason argues against a literal understanding because it is not possible to apply the principle of retaliation with precision. This point is particularly cogent if we bear in mind that the underlying justification for retaliation in kind is the concept of equivalence. In other words, if the victim of an attack sustained an injury, it is only right that the aggressor should suffer the same injury. This represents a rough but satisfying form of frontier justice in which the assailant gets his just desserts. But, says Ibn Ezra, the very desire to impose equality before the law that serves as the basic justification for 'an eye for an eye' contests the literal interpretation, for the exact same injury cannot, in all probability, be inflicted upon the perpetrator.
The Traditional Reading – The Textual Argument
The troublesome phrase in question is of course "and you shall give a soul for a soul. An eye for an eye..." In the original Hebrew, the words read: "VeNatata nefesh tachat nafesh. Ayin tachat ayin..." What is the meaning of 'tachat'? Often, this word carries a spatial connotation and means 'under,' but here and in many other contexts it implies 'in place of.' Thus, we are told that Avraham offered a ram 'tachat' his son Yitzchak (Bereishit 22:13) which is to say 'in place of,' or that Yaacov rebukes his wife Rachel by exclaiming "am I then 'tachat' God who has withheld offspring from you?" (Bereishit 30:2). Rendering the phrase as 'a soul in place of a soul, and an eye in place of an eye' does not appear to obviate the difficulty.
An investigation of the parallel passage in the Book of VaYikra in Parashat Emor, however, begins to shed light on the textual aspect of the issue: "A man who strikes and kills his fellow shall surely be put to death. One who strikes and kills an animal shall make payment ('yeshalmenah'), a soul for a soul. A man who inflicts a disfigurement on his fellow, as he did so shall it be done to him. A break for a break, an eye for an eye, a tooth for a tooth, as a man inflicts a disfigurement on his fellow so shall it be given upon him. One who strikes and kills an animal shall pay for it, and one who strikes and kills a man shall die..." (VaYikra 24:17-23). The verses here emphatically contrast the case of killing a man with the case of killing an animal. For the former, capital punishment is enjoined, while for the latter, payment can be made. In language which echoes that of our Parasha, the Torah again appears to mandate retaliation for the bodily injury of another person. We are once more left to ponder the significance of 'an eye for an eye, and a tooth for a tooth.'
This time, however, the text of the Torah interprets itself: "One who strikes and kills an animal shall make payment, a soul for a soul." The indication clearly is that one who kills his fellow's animal must pay for it and make restitution, for the verb 'yeshalmenah' comes from the root 'ShaLeM' meaning 'complete' or 'whole,' and therefore 'restitution' or 'payment' that can replace a loss and thereby restore the victim to a complete state. Yet the Torah unambiguously describes this arrangement as 'a soul for (in place of) a soul'! In other words, the means of compensating the injured party for loss of his killed animal is not by killing the animal of the aggressor, but rather by necessitating that aggressor to make payment. Nevertheless, the Torah calls this monetary settlement 'a soul for a soul.'
At first glance, adopting such a reading also with respect to injury of another human being appears to be necessarily contradicted by the expression "a man who inflicts a disfigurement on his fellow, as he did (ka'asher asah) so shall it be done to him (kain yaiaseh lo)." Shimshon's use of the same idiom to describe his response to Philistine aggression, however, demonstrates that it need not imply exact, equivalent reciprocity of injury. After the Philistines had burned his Timnite wife and father-in-law, Shimshon strikes back and kills many of them. The tribesmen of Yehuda among whom he seeks refuge are reluctant to shelter him, for they fear the vengeance of the ruling Philistines. "You are fully aware that the Philistines rule over us," they exclaim, "what have you done to us?" Shimshon responds: "As they have done to me (ka'asher asu li), so have I done to them (Kain asiti lahem)!" (See The Book of Shoftim/Judges Chapter 14-15). Now surely, Shimshon did not mean to imply that he had inflicted the very same bodily injuries on the Philistines that they had done to him, for they had burned his wife and father-in-law and his response was warfare. Rather, what he meant was that he had 'repaid' them in kind for their act of cruelty by besting them in battle. In other words, the expression employed in the passage from Parashat Emor can also be taken to mean 'repayment or compensation' and not 'equivalent retaliatory injury.'
Reconciling the Literal Reading with the Traditional Interpretation
We are now able to provide a plausible explanation for this difficult expression. The Torah could very well be interpreted to mean that when a person strikes and injures the eye or tooth of his fellow, the appropriate and just judicial response is the imposition of a monetary forfeiture on the aggressor in accordance with the 'value' of the injured organ or limb. This, in fact, is the position that is maintained by the traditional sources themselves. Ibn Ezra, though, remains skeptical of the rational and textual arguments, for in the end he concludes: "The general operative principle is that we are not able to offer a complete explanation for the commandments of the Torah without recourse to the Oral Tradition transmitted by our Sages. Just as we received the Written Torah from our ancestors, so have we received the Oral Tradition, and both are equally authoritative." Thus, although a literal reading of 'an eye for an eye' is not absolutely refutable on rational or textual grounds, it is negated by the existence of an authentic oral tradition to the contrary.
We are thus left in the somewhat uncomfortable position of possessing a text which seems to indicate one thing – retaliation, and a tradition that insists on another – monetary compensation. Or, to phrase the conundrum differently, if the Torah really meant to teach us monetary compensation, then why did it employ in its written form an expression which could easily be understood (misinterpreted?) to mean bodily retaliation? Here, the Ibn Ezra provides an answer that captures the essence of the Torah's more profound message: "The expression 'an eye for an eye' means that it would be fitting for the aggressor to forfeit his own eye, if he refuses to provide 'ransom' in the form of monetary compensation." What is the meaning of his words?
Sometimes we fall into the trap of believing that money can solve all of life's ills. If an object breaks, money can replace it. If a body ails, money can heal it. If a soul languishes, money can comfort it. Human productivity is measured by economic output, human creativity by potential market value, human success by monetary worth. These deep-seated but skewed values are not an invention of the modern age but have been part of the social landscape since the concept of capital first seized hold of the human psyche. The danger that such attitudes engender is that they can lead to the commercialization of the human being, and his transformation from a Divinely fashioned unique personality into a mass-produced standard good or service.
To express the problem in the terms of Parashat Mishpatim, we may come to believe that when an injury is inflicted on another person's property or body, money can heal the wound, assuage the pain, erase the anguish, and compensate for the damage. The adoption of such an attitude would be to read 'an eye for an eye' as implying exclusively monetary compensation. Now it may indeed be the case that financial restitution is to be preferred to retaliation, and that surely needs no rational explanation. At the same time however, we must understand that monetary compensation is perhaps the best solution, but that in the end no replacement can ever be made for the injury inflicted, particularly if loss of a limb or organ is involved. The explanation provided by the Oral Tradition makes it clear that payment for damage may absolve one of secular and social culpability. The Written Torah, however, couches the concept of monetary compensation in terms of 'an eye for an eye.' This striking phrase is to indicate that in the much more exalted moral and ethical dimension, the perpetrator must feel for the injured party as if they had to forfeit their own eye, as if financial restitution was an imperfect and incomplete form of ransom for their crime, as if no amount of money could ever replace what was lost, for that is indeed the case.
For further study: see the Ibn Ezra's introduction to the Torah where he develops at length the concept of the necessity of relying upon an Oral Tradition to explicate the written text of the Torah. Something as fundamental as the principals of the Hebrew calendar, essential for regulating the life of the Jewish nation and for allowing the celebration of the days enjoined by Scriptural Law, is not spelled out by the Written Torah in any way which makes its practical formulation possible. This example, and many others like it, indicates that the existence of an authentic and accurate Oral Tradition is not only an article of faith, but also a rational imperative.
See also the Rambam (12th century, Egypt) in his introduction to the Mishna, where he indicates that there has never been a divergent tradition that has read 'an eye for an eye' literally. This makes the traditional Oral interpretation as unassailable as the 'use of the Etrog on the Festival of Succot, for since the days of Yehoshua bin Nun until now, we have not seen a single Jewish community interpret 'the fruit of a beautiful tree' (VaYikra 23:40) as indicating any other species!" See also the Rambam in his Mishneh Torah, Laws of Chovel U'Mazik Chapter 1:1-6 where he states the matter in similar terms.
I have avoided translating 'Aseret HaDibrot' as the 'Ten Commandments' and have instead employed the 'Ten Utterances,' which is more accurate linguistically as well as thematically. The Torah nowhere refers to these ten things as 'Aseret HaMitzvot.' Jewish tradition early on recognized the danger of employing the term 'Ten Commandments' to describe these principles, since this has the inevitable effect of de-emphasizing the significance of the other mitzvot. See the Talmud in Tractate Berakhot that discusses the decision to exclude the recitation of the 'Aseret HaDibrot' from the daily liturgy, for similar reasons.