There's something sinister about "an eye for an eye"....
Leaves the typical layperson wondering about just how barbaric those ancient Israelites were. Common misconception is that people would inflict punishments on one another directly. Apparently not, when you read on! Three versions for your consideration follow.
1. Here's some background on it from Wikipedia:
An
eye for an eye is the principle that a person who has injured another person is penalized to a similar degree, or according to other interpretations the victim receives the value of the injury in compensation. According to Jewish interpretations the victim in criminal law gets financial compensation based on the law of human equality eschewing mutilation and
lex talionis.
[1]
The English word
talion means a retaliation authorized by law, in which the punishment corresponds in kind and degree to the injury, from the
Latin talio.
[2]The phrase "an eye for an eye" is sometimes trivially referred to using the Latin term
lex talionis, the law of talion.
In the Hammurabi Code and Hebrew Law, the “eye for eye” was to restrict compensation to the value of the loss; in the Hammurabic code as being literal, and in the Hebrew Law applying monetarily. Thus, it might be better read 'only one eye for one eye'.
[2] The biblical phrase, "
an eye for an eye" in Exodus and Leviticus (
עין תחת עין, ayin tachat ayin) literally means 'an eye under an eye' while a slightly different phrase (עַיִן בְּעַיִן שֵׁן בְּשֵׁן, literally "eye for an eye") is used another passage (in Deuteronomy) of the
Jewish Bible, specifically, in the first of its three subdivisions, the
Torah.
[6][7][8] For example, a passage in
Leviticus states, "And a man who inflicts an injury upon his fellow man just as he did, so shall be done to him [namely,] fracture for fracture, eye for eye, tooth for tooth. Just as he inflicted an injury upon a person, so shall it be inflicted upon him.
[6]
Judaism[edit]
Isaac Kalimi explains that the “lex talionis was humanized by the Rabbis who interpreted "an eye for an eye" to mean reasonable pecuniary compensation. As in the case of the Babylonian 'lex talionis', ethical Judaism and humane Jewish jurisprudence replaces the
peshat (literal meaning) of the written Torah.
[9]Pasachoff and Littman point to the reinterpretation of the lex talionis as an example of the ability of Pharisaic Judaism to "adapt to changing social and intellectual ideas."
Rabbi Monique Susskind Goldberg z’l
Rabbi Susskind worked at the Center for Women in Jewish Law at the Schechter Institute of Jewish Studies since its inception in 1999. She was a native of Belgium and had degrees in Biology and Bible and was ordained at the Schechter Rabbinical Seminary in 1999. She very sadly passed away in 2012.
Question
Please can you tell me how I should understand Exodus 21 on what is commonly or wrongly called the Talion Law?
Answer
The Talmud and commentators (for instance see Rashi on Exodus 21:24) explain that the meaning of this law is the obligation to pay monetary compensation for injuries inflicted. For an eye one had to pay the value of an eye, for a tooth, the value of a tooth and so on. The predominance of slavery determined the amount of compensation paid. When slavery was still customary one compared the market value of a slave who lost an eye against the market value of a healthy slave. The difference is the amount of money paid to a person who lost his eye. Where widespread slavery is not common, there are other considerations in determining the amount of compensation. In any case, the law in Exodus was never interpreted to permit one to injure the person who inflicted an injury. #
3. And now from Aish HaTorah, a much more detailed explanation as to why we should NOT take it literally and how the Jewish version stepped away from Hammurabi's code of like for like punishment, linked to the crime itself.
....excerpted from Parsha Mishpatim commentary by Rabbi Ari Kahn
Comparing the emerging legal codex of our Parsha with other authoritative codes of law current in the ancient Near East, our problem only worsens. The best known of these is the Code of Hammurabi, which mandated lex talionis, literally prescribing punitive removal of an eye.3
In contrast, Jewish law sees the body as being owned by God; the individual is merely a caretaker. This idea is concisely and clearly expressed in a stunning statement by Rav Sh'neor Zalman of Liadi, in his Shulchan Oruch:
It is forbidden to strike one's fellow, even if he gives permission to strike him, for a person does not own his or her body at all [to allow] striking or embarrassment or to cause pain of any kind, even through denying a particular food or drink.
Clearly, if the body is owned by God and one is forbidden to cause pain of any kind - physical or emotional - the very thought that the Torah would mandate removing an eye as punishment is implausible. Nonetheless, when damage is incurred, when an individual suffers physical harm at the hands of another, the damage to the victim's person or livelihood carries a price.
The Ibn Ezra,4 citing Rav Saadya Gaon, rejects the principle of lex talionis on technical grounds: If one person injures another, impairing but not obliterating his vision, how can a court implement a fair punishment? Would it be reasonable to expect a court of law to precisely mete out punishment, impairing the offender's vision to the precise degree as the damage caused to the victim? Rav Saadya points out that such an interpretation of the Torah is impractical, even impossible, and must therefore be an incorrect understanding of the text. Although his objection is technical and not based on moral concerns or social sensitivities, but solely on the inexact result of this type of punishment in cases of partial blindness, Rav Saadya concludes that the Torah legislated against this behavior in all cases, even when the victim completely lost vision in the damaged eye.5 The weakness of the argument is that in cases of absolute blindness, which ostensibly is the case referred to by the straightforward reading of the Torah text, exact retribution could be measured, so why would it then be rejected? 6
Thus far, we have addressed the verse in question from several distinct approaches: First, we have examined linguistic considerations: Do the words of the verse, tachat ayin, actually mean "an eye for an eye"? Second, we have posed the moral dilemma inherent in this verse, based on the principle that the human body is the sole property of God, and at no time or in any way is man allowed to do it physical harm. Finally, technical considerations come into the equation, namely the difficulty in implementing fair punishment across the board and in a variety of cases. Yet there remains an additional, more practical consideration: Aside from the barbaric and grotesque elements of removing a body part of the perpetrator, other than perhaps the most base motivation of revenge, how would the punishment indicated by a literal reading of the verse, "an eye for an eye," help the victim? 7
The Rambam, in his halachic magnum opus Yad Hachazaka, puts forth three arguments as to why the verse could not possibly have been intended to be taken literally.8 His first argument is 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. His third argument follows along this same line; he reiterates that this interpretation has its origin at Mount 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, for instead of simply focusing on the words in question, the Rambam considers the broader context of Parshat Mishpatim, bringing to bear verses in an earlier section of the Torah that deal with bodily damages: Our verse, as the Rambam points out, 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 legtachat a leg" - in short, a list of physical wounds. What we might have forgotten, if not for the Rambam's comment, is 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.
Here we clearly see that the "price" of damaging one's friend is financial, not corporal. The word "tachat" used in our verse must necessarily be understood within the context of this adjacent verse, and the idea of financial restitution begins to seem more than interpretation, more than apologetics. The contextual argument is quite compelling, almost unavoidable.
The experienced reader, though, is left somewhat unsettled. This passage from the Yad Hachazaka gnaws at us because it is uncharacteristic. The Rambam is wont to state his opinion without citing any source, without offering supporting arguments. Why did he feel it necessary in this case to put forth three distinct arguments? Occasionally, adding multiple arguments weakens one's position; why did the Rambam feel that in this case, rather than simply stating the law as is his usual style, he needed to prove the law, and with multiple proofs?
A Talmudic passage, with which the Rambam was most certainly familiar, may be the key to this uncharacteristic style. In his third point, the Rambam states that the non-literal interpretation of this verse has been universal in the practice of Jewish law, and every Jewish court from the time of Moshe has been unanimous in discharging obligations for physical damage through financial restitution. While he stated that this has been the opinion followed in practice, he did not state that this opinion has always enjoyed an absolute monopoly in halachic thought. A passage in the Gemara may indicate that there may have been a dissenting opinion:
It was taught: R. Eliezer said: 'Eye for eye' should be understood literally. Literally, you say? Could R. Eliezer be against all those Tannaim [enumerated] above...? R. Ashi therefore said: It means to say that the valuation will be made not of [the eye of] the injured person but of [that of] the offender. (Talmud Bavli Baba Kamma 84a)
The Talmud records the dissenting opinion of Rabbi Eliezer, who contends that "an eye tachat an eye" is to be understood literally - but not in the manner we might expect. The Talmud qualifies and explains his opinion: The perpetrator indeed pays the value of an eye. The question is, the value of whose eye? The value of the victim's eye, or the value of his own eye? Rabbi Eliezer seems to be telling us that this man "deserves" to lose his eye, but the Torah allows him, even requires him, to pay ransom for his own eye. He is not paying the replacement value of the victim's lost eye; he is paying a ransom, the value of his own eye, which should, by all rights, be forfeited. 9
The uncharacteristic style of our passage in the Rambam's Yad Hachazaka, then, imparts a certain hesitation which we may reconcile with the Rambam's appreciation of this dissenting Talmudic opinion. We may gain further insight if we examine the Rambam's philosophical magnum opus, "The Guide for the Perplexed." Here, the Rambam explains the concept of punishment in philosophical terms. The one overarching principle in the Torah's philosophy of punishment is that whatever a person does, he deserves to be punished in an identical way. This should be precise; crime creates punishment.
The punishment of one who sins against his neighbor consists in the general rule that there shall be done unto him exactly as he has done: if he injured anyone physically, he must suffer physically; if he damaged the property of his neighbor, he shall be punished by damage to his own property.
There are spiritual rules of the universe; there is an equal and opposite effect to a person's actions. There is a Divine quid pro quo. A spiritually sophisticated individual should expect Divine retribution for any and all indiscretions. One of the most basic tenets of Judaism is reward and punishment, and such should be man's expectations. We do not do good for the sake of the reward that will follow, rather we believe that there is reward and punishment for all our actions. To elucidate this principle, the Rambam cites these very verses from our Parsha. He then continues:
But the person whose property has been damaged should be ready to resign his claim totally or partly. Only to the murderer we must not be lenient because of the greatness of his crime; and no ransom must be accepted of him. "And the land cannot be cleansed of the blood that is shed therein but by the blood of him that shed it" (Num. 31:33). Hence even if the murdered person continued to live after the attack for an hour or for days, was able to speak and possessed complete consciousness, and if he himself said, "Pardon my murderer, I have pardoned and forgiven him," he must not be obeyed. We must take life for life, and estimate equally the life of a child and that of a grown-up person, of a slave and of a freeman, of a wise man and of a fool. For there is no greater sin than this. And he who mutilated a limb of his neighbor, must himself lose a limb. "As he has caused a blemish in a man, so shall it be done to him again" (Lev. 24:20). You must not raise an objection from our practice of imposing a fine in such cases. For we have proposed to ourselves to give here the reason for the precepts mentioned in the Torah, and not for that which is stated in the Talmud. I have, however, an explanation for the interpretation given in the Talmud, but it will be communicated viva voce (in person, face to face). Injuries that cannot be reproduced exactly in another person, are compensated for by payment; "he will pay only damages of lost wages and medical expenses." (Shmot 21, 19). (Guide for the Perplexed, Book 3 Chapter 41)
Here we have watershed of Jewish philosophy: The Rambam makes a remarkable distinction between what is written in the Torah versus the tradition found in the Talmud; even when contradictory, both are true. The Rambam makes no attempt to reconcile the Talmudic tradition with the Biblical text, explaining that the functions of each are different. In the Guide to the Perplexed, the Rambam explains Jewish philosophy, based on the text of the Torah. On the other hand, when discussing the Law, and the implementation of legal principles, the Rambam forcibly states that our authoritative source for financial restitution is the orally transmitted tradition recorded in the Talmud and universally upheld in Jewish practice. Only when this distinction is made by the Rambam are we able to understand why the language of these Torah verses is less than straightforward, non-legal. The words of the Torah serve a higher purpose than legal formulation. They reflect a philosophical cornerstone of Judaism; while other factors cause the legal implementation to take a slightly different course, the importance of the philosophical statement contained in this verse is preserved by the language used to express it. The words as they appear in the Torah have a value independent of their practical interpretation.10 In this instance they teach the philosophy of the law even when it is not literally implemented.
