Parsha Mishpatim – discussion on “Eye for an Eye”

‘Eye for an Eye:’ Jewish Justice?

By Rabbi Hillel Goldberg

Michelangelo’s Moses has two horns on his head because Michelangelo’s Bible, the Latin Vulgate, mistranslated Exodus 34:29 as “Moses had horns” instead of “Moses’ face shone.” With similar results, Exodus 21:24-25 is commonly read as requiring “an eye for an eye.”

By translation or mistranslation, the Hebrew Bible has probably supplied more staples to the Western cannon of quotations than any other book (or set of books), including Shakespeare. Certain Biblical lines stand out, though the distinction is sometimes a dubious one from the perspective of scholars of Hebrew and of the Hebrew Bible. For reliance on mistranslation, projection of preconception, brutality of intent and ignorance of the Biblical context, probably no Biblical verses are more famous, or infamous, than this Torah portion’s “an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot, a burn for a burn, a wound for a wound, a bruise for a bruise” (Exodus 21:24-25).

Here, we are told, is vengeful, unbending, even inhuman justice, only too typical of the “Old Testament.” Here is the “Law” against which Paul of Tarsus inveighed so heavily; here is Judaism’s absolute, untrammeled and altogether one-sided rigor. Here is the transmogrified teaching of the jealous G-d of Moses – Him Who needed to be replaced, or, at the least, developed into Paul’s G-d of love, mercy and understanding.

It’s worse still. When the Talmudic rabbis came and read “an eye for an eye” to connote not sadistic punishment but monetary compensation for bodily injury, this, we are told, was but the sophistry of the Pharisees, the embarrassed apologia of rabbis too intellectually dishonest to admit to the decisive impugning of Biblical Law offered by its critics.

A careful reading of the context of “an eye for an eye” reveals the egregiousness of its popular misreading – the absence of any basis for its dubious status as a Biblical disfiguration – as well as the logic of its Talmudic exegesis.

“An eye for an eye” covers but two verses (Exodus 21:24-25), concluding a context of six verses (21:18-19, 22-25). The conclusion makes sense only in conjunction with the context. “An eye for an eye” is not an isolated teaching but a contextual one; specifically, a final element of a twofold chapter in Biblical civil law.

At its opening, this chapter speaks of intentionally inflicted injury; at its closing, it speaks of accidentally inflicted injury. Note: when bodily damage is intentionally inflicted, the Bible imposes no punishment of “an eye for an eye,” only the requirement to pay for lost time and medical expenses. The opening verses (18-19) – on intentionally inflicted injury – read as follows:

“And if men quarrel and one strikes the other with a stone or a fist, and he [the victim] does not die, but falls into bed – if he gets up and goes outside under his own power, the one who struck him is absolved, except for the loss of his time, which he [the one who struck him] shall pay – and he shall cause him to be thoroughly healed.”

The closing verses (22-25) – on accidentally inflicted injury – include the single reference in the Bible to pregnancy reduction, and read as follows: “And if men shall fight and collide with a pregnant woman and she miscarries, but does not herself die, he [the fighting man] shall surely be punished, in accord with the assessment of [the value of the fetus] made by the woman’s husband . . . But if the woman shall die, you shall give a life for a life; an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot; a burn for a burn, a wound for a wound, a bruise for a bruise.”

The “eye for eye” punishment is an extension of the punishment for accidental pregnancy reduction. Two men fight; they intend to injure each other, but in the process accidentally destroy a fetus. Its loss must be compensated monetarily (on this ruling’s implications for abortion, more below). But if bodily injury is accidentally inflicted on the woman herself, and the injury is fatal, the fighting men must give “a life for a life.” Analogously, if an accidental bodily injury destroys another person’s eye, the injurer must give “an eye for an eye” and so on down the line for a tooth, hand, foot, burn, wound and bruise.

Now, could the Bible possibly mean that in the case of an intentional injury, the punishment is restricted to lost time and medical expenses, but in the case of an accidental injury, the punishment is to gouge out the injurer’s eye? Could the Bible possibly impose a less severe punishment for an intentionally inflicted injury than for an accidentally inflicted one? Clearly not. Clearly, the Biblical context rules out the popular reading of “an eye for an eye” as the obligation to blind him who accidentally blinded someone else. This is a misreading, due to ignorance of Biblical context.

That this is a misreading does not establish the Talmud’s reading. That “an eye for an eye,” if taken out of context, is erroneously taken to connote a literal tit for tat, does not provide a context for the Talmudic exegesis of “an eye for an eye” as monetary compensation. What is the Biblical basis for the Talmud’s exegesis? Where does it say that if one accidentally blinds a person, the injurer is to offer monetary compensation for the worth of the victim’s eye?

Further, even if there is a sound textual basis for such a reading, why doesn’t the Bible just say so outright? Why the confusing reference to cruelty, if the meaning really is, “if someone accidentally blinds a person, the injurer must pay the victim the worth of his eye”?

First question first. If the Bible meant, take the eye of the injurer for the wasted eye of the victim, the Bible would have said so. But the Bible never says “take an eye for an eye.” That is a mistranslation. The Bible says, “and you shall give . . . an eye for an eye.” Surely this does not mean that the person who accidentally blinded someone must give the victim a gouged out eye. As Avigdor Bonchek has noted in Studying the Torah: “Were the text’s intention to extract an eye from the villain, the use of the word ‘give’ is inappropriate. The lex talionis punishment is meant to take from the guilty, not to to give to the victim. Certainly the victim has no desire to receive a gouged-out eye. It should have said, ‘and you shall take an eye for eye . . . ‘ But it doesn’t; it says ‘give.’ Giving implies something that is meant to reach the recipient. Monetary compensation fits that definition; handing over a dismembered limb doesn’t.” Boncheck identifies another mistranslation of the “eye for eye” text which, when corrected, offers further support for the Talmudic exegesis of monetary compensation.

The Bible does not say, “an eye for an eye.” It says, “an eye instead of an eye” or “in place of an eye.” “Instead of, in place of” – tachat in the Hebrew – connotes not identical substitution, not an eye for an eye, but one item substituted for a different item. After Abraham, his sword ready to sacrifice Isaac on Mount Moriah, was suddenly told by the angel of G-d not to sacrifice Isaac, “Abraham went and took the ram and brought it up for a burnt offering instead of (tachat) his son” (Genesis 22:13). In full context and under accurate translation, the Bible now reads: If a person accidentally blinds someone, the injurer must give the victim monetary compensation in place of an eye. That is, the injurer must give the victim something else – not an eye – in compensation for having accidentally wasted the victim’s eye. As Boncheck writes, “An eye for an eye means to give something in place of the lost eye, that being monetary compensation.”

But if the verse, by context and connotation, means monetary compensation, why does the Bible not say so? Why does the text insist on labeling compensation by the term “eye?” Why the verbal sleight of hand? Commentators offer: No Jewish court punishes by mutilating the guilty (unless one considers capital punishment a form of mutilation). In civil cases, the most that a Jewish court may impose is monetary compensation. But this can never fully compensate the victim. No price can be put on sight; no payment can replace it. The injurer deserves to lose his eye in the sense that his compensation to the victim is morally incommensurate to the injury, no matter how much he pays. Compensation cannot complete atonement.

The Bible uses the harsh phraseology, “an eye in place of an eye,” to emphasize that compensation does not wipe the slate clean. The injurer must fill himself with remorse and repent.

But why? Did not the injurer inflict harm accidentally, to which no moral culpability can be attached? Why is the injurer morally culpable at all? While culpability is less for accidental than for intentional harm, there is no such thing as a scot-free accident. Accidents unveil personal traits, whether of malice or of sloppiness. Accidents teach people lessons about themselves. Accidents are occasions for self-scrutiny and repentance. Even for an accidentally destroyed limb, the injurer must engage in deep repentance.

Exodus’ requirement of monetary compensation for a fetus has been taken to impute a pro-abortion position to the Bible. The Bible, it is said, does not consider a fetus a life, for if it did the loss of a fetus could not be punished by mere monetary compensation.

This is a partially incorrect. Exodus speaks of accidental pregnancy reduction, of civil liability. In that case, monetary compensation is sufficient. Feticide, however, is a criminal matter; feticide – abortion – entails a different level of penalty. To characterize abortion, based on the civil penalty in Exodus, as only civil case, is incorrect. But it is correct to extrapolate from Exodus this point:

Jewish law does not rule on abortion in accord with abstractions and terminology. Jewish law does not discuss whether a fetus is a “life” or whether accidental or intentional pregnancy reduction is “murder.” Jewish law takes a very severe, though not absolute, view of abortion, forbidding it under almost all circumstances, without, however, ruling in an abstract sense whether a fetus is a “life.” Thus, to characterize the monetary penalty mentioned in Exodus as the basis for a non-absolutist position on abortion in Jewish law is correct

 

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