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Parshat Mishpatim
The Problem The biblical concept of "an eye for an eye" is well known. The way it is frequently understood is that one is punished with exactly what one inflicts on another. Therefore, someone who damages another's eye will have his eye damaged. Someone who knocks out another's tooth will have his tooth knocked out. However, rabbinic literature has never understood it this way. The Mechilta on Exodus 21:24 and the Talmud in Ketuvot 32b and Bava Kamma 83b understand "an eye for an eye" as meaning that someone who damage's an eye must pay the value of that eye. An eye's worth for an eye. Is this an example of the rabbis overriding the Bible? Did the sages distort the Torah because they found it objectionable? The verse clearly states "an eye for an eye". How could the rabbis change it? The answer is that understanding the Bible requires more than reading one verse. You have to read that verse in its context and compare its language with similar language throughout the Bible. Our contention is that "an eye for an eye" in its most literal and simple meaning is "an eye's worth for an eye". Let us look at the two passages in the Torah that have the phrase "an eye for an eye" and analyze them carefully. When individuals quarrel and one strikes the other with a stone or fist so that the injured party, though not dead, is confined to bed, but recovers and walks around outside with the help of a staff, then the assailant shall be free of liability, except to give for the loss of time, and to arrange for full recovery. Context Let us first consider the passage in Exodus. It begins in verses 18-19 with two individuals quarreling and then one injuring the other. This is a case of intentional damage. What is the punishment for such intentional damage? If the injured party survives and this is not a case of murder, then the punishment is "the assailant shall be free of liability, except to pay for the loss of time, and to arrange for full recovery". In the case of intentional damage the punishment is purely financial. (Verses 20-21 discuss intentional damage to a slave which is not our topic) 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..." Is it possible that an intentional injury is only punished with monetary damages but an accidental injury is punished more harshly with an actual physical punishment?
Moreover, the passage regarding the accidental injury of a pregnant woman reads very smoothly the way we quoted it. Read it again above. If there is only a miscarriage then the injurer is fined for the miscarriage. If the woman is injured, then the accidental assailant is additionally fined for the woman's precise injury. Looking at the progression of the narrative, we are led to conclude that the phrase "an eye for an eye" does not refer to actual physical punishment (Benno Jacob as cited by Nehama Leibowitz). But can this be borne out by the actual words of the text? Language The Hebrew phrasing of "an eye for an eye" is ayin tachat ayin
Most relevant to our context is Joshua 2:14. "The men said to her, 'Our lives for (tachat) yours!'" 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 will die so that she will not! We therefore see that the word tachat does not mean that an injurer will be punished with
the injury that he has inflicted. It means he will receive a punishment that was not done to the
victim. But if that is what this phrase means, what about the phrases
in the parallel passage in Leviticus. "Anyone who maims another, what he inflicted will be done to
him."
The first phrase has a parallel in Judges 15:11. Shimshon said regarding the Phillistines, "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. We see that the phrase used does not imply exact equality between the two actions. There is therefore no compulsion to understand the phrase in Leviticus as meaning that the exact same injury that one party inflicted must be inflicted back upon him. The language does not necessarily mean that, as we have proven from Judges (Ibn Ezra, Lev. 24:19). Similarly, in our own passage we find the word "give" used in reference to payment. "The assailant shall be free of liability, except to give for the loss of time." Here, give refers to paying the victim for lost time. Similarly in our case "give" refers to paying for the injury inflicted (Rambam, Hilchot Chovel Umazik 1:4). Prooftexts We can also deduce the true meaning of our passage by looking at other laws that are explicit in the Bible and inferring from them. For example, Numbers 35:31 says, "Moreover you shall accept no ransom for the life of a murderer who is subject to the death penalty." Why would anyone think that a court would accept a ransom for a murderer's life? From where would this idea of paying instead of physical punishment come from? This verse is telling us that only in regard to a murderer can the court not accept payment. For other bodily harm, however, the court does accept payment (Talmud, Bava Kamma 83b). The preceding were all examples of understanding the Bible based on a broad view. We have looked at the passage's internal structure, similar usage of language, and other relevant laws. They all lead to the conclusion that the phrase "an eye for an eye" means that the assailant is fined an eye's worth for the damage of an eye. However, there is another method used by commentators to arrive at this conclusion. Logical Arguments The verse immediately following the passage in Leviticus (24:22) is "One law there shall be for you". The Torah demands equal treatment for all assailants. But what would happen if a blind man blinded another? How could he be punished via "an eye for an eye"? He has no functioning eyes! Similarly, what if a man with no legs damaged someone else's legs? He has no legs with which to be punished. "An eye for an eye" understood colloquially does not afford equity among assailants. In order to keep the biblical mandate of "an eye for an eye" from conflicting with the mandate in Leviticus to give out equal punishments the phrase "an eye for an eye" must refer to monetary punishment. Otherwise, it conflicts with the verse "one law there shall be for you" (Bava Kamma 83b-84a). Similarly, how is it possible to be so precise in injuring an assailant that we can give him the exact same injuries that he gave his victim? Complications are almost a given so that destroying a person's arm can lead to further damage and even death. If "an eye for an eye" meant that a court must inflict on an assailant the same injury he inflicted on his victim, then a court could never punish the assailant at all out of concern for the likely occurence that the punishment will yield more injury than the assailant inflicted (Bava Kamma 84a). A side issue is the common claim that Rabbi Eliezer was of the view that the phrase "an eye for an eye" means that an assailant's eye must be damaged if he damaged his victim's eye. The Talmud has the following discussion in Bava Kamma 84a. It is taught: Rabbi Eliezer said: An eye for an eye - really. Would you think he meant really? Does Rabbi Eliezer disagree with all the previous sages?... Rav Ashi said: He meant that we do not evaluate the value of the victim's eye but of the assailant's eye. There are those who claim that Rabbi Eliezer meant that we damage an assailant's eye as punishment and that the Talmud distorted his statement. However, we have to understand the context in which Rabbi Eliezer's statement was made and was interpreted. The method of study in the talmudic period was entirely orally. Therefore, rabbis would simplify statements and students would memorize them. There was no room for lengthy explanations because these would be confused. Rather, the teachings were codified in the most simple way, maintaining an economy of words, so that they could be easily memorized. Rabbi Eliezer probably spoke for hours in his yeshiva on the topic of "an eye for an eye". However, he formalized his teaching in the phrase "an eye for an eye - really". What were his thoughts when he created that phrase? In what context did he say it and did he know it would be understood? For centuries, beginning at the time of Yehoshua, courts had to deal with issues of bodily injuries. The question of how an assailant is punished must have come up many times each year. Even if one were to (incorrectly) assume that this did not come into existence until the time of the rabbis/Pharisees, Rabbi Eliezer lived at the end of the first century CE. This was after the time of Hillel and Shammai, Rabban Gamliel Hazaken, and the destruction of the Temple. There was undoubtedly an established law in this case. Rabbi Eliezer knew this as did all of his students and colleagues. When he created the phrase "an eye for an eye - really", he must have known that no one would have thought that he was contradicting established law that had been in existence for centuries. He knew that no one would believe that he would disagree with every other major sage on a basic matter such as this. He therefore felt comfortable using this phraseology and knew that with a little study his economic phrase could be understood. What Rabbi Eliezer meant was that "an eye for an eye" must be taken literally in the sense that the amount determined as the monetary damage must be based on the eye of the assailant. If the victim was a photographer and the assailant a grave-digger, we determine the value of an eye based on the assailant. Even though the photographer's eye is more valuable, the assailant only pays his "eye" for the eye he damaged. Reading Rabbi Eliezer's statement in context and understanding what he really said is not an apologetic attempt. Even an academic talmudic critic like Professor David Weiss Halivni of Columbia University agreed that Rabbi Eliezer never meant that an assailant must have his eye damaged (Mekorot Umesorot, Bava Kamma ad loc.). To claim that would be to take Rabbi Eliezer's statement out of its cultural and intellectual context.
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