"עַיִן תַּחַת עַיִן" – An Eye for an Eye/2

"עַיִן תַּחַת עַיִן" – An Eye for an Eye

Exegetical Approaches

Overview

Commentators disagree over whether the literal talionic meaning of "עַיִן תַּחַת עַיִן" is also the simple meaning of the verse when viewed in context. While early sources going back to the time of the second Beit HaMikdash, such as Jubilees and Philo, render the verse literally, later Rabbinic sources almost unanimously reject this option and interpret the verse metaphorically. This leads medieval and modern exegetes to struggle valiantly to reduce the tension between the literal retributive understanding of the verse and its Rabbinic interpretation. Some, like R. Saadia, go to great lengths to demonstrate how the Midrash is really the verse's simple meaning. Others, like Ibn Ezra and the Rambam view the verse as presenting an ideal which must be converted and translated when applied to real life. Finally, the Hoil Moshe differentiates between the generation of former slaves to which the Torah was originally given and future, more civilized, generations.

Physical Punishment

"עַיִן תַּחַת עַיִן" is understood literally, and talionic retribution is administered.

Sources: JubileesChapter 4:43-45About Jubilees, PhiloThe Special Laws III:XXXI:173-175The Special Laws III:XXXIII:182The Special Laws III:XXXV:195About Philo, Boethusians cited in Megillat TaanitOxford Ms. of Scholion 4 TammuzAbout Megillat Taanit,¹ R. EliezerMekhilta Mishpatim Nezikin 8Bavli Bava Kamma 83b-84aAbout the MekhiltaAbout the Bavli,² Ben Zuta (the Karaite) cited by Ibn EzraShemot Long Commentary 21:23-24Shemot Short Commentary 21:25About R. Avraham ibn Ezra³

Judicial theory – Philo focuses on the need for appropriate retribution for the person who committed the crime. Thus, he explains that proper justice mandates a measure for measure punishment, exactly equal to the damage that was done, be it injury to life, limbs, or property.⁴ Talionic justice also serves as a significant deterrent to others who might consider committing such a crime.

"נֶפֶשׁ תַּחַת נָפֶשׁ" – According to this approach, both "נֶפֶשׁ תַּחַת נָפֶשׁ" and "עַיִן תַּחַת עַיִן" refer to retribution in kind.

Biblical parallels – The principle of "מידה כנגד מידה", or "just deserts", is a dominant motif in Tanakh.⁵ A classic case of lex talionis is the cutting off of AdoniBezek's thumbs and big toes in Shofetim 1:6-7 as a repayment in kind for his doing the same to other kings.⁶

Morality – Megillat Taanit cites the Boethusians as saying "יהו שוים כאחד", i.e. that the person who committed the assault deserves to be no better off than his victim. The principle of talion also treats all people as equals, as a wealthy person who maims a fellow man suffers just like a poor person who did the same.⁷ Finally, see Philo who notes that it would be unjust to exact a punishment which bears no resemblance to the offense committed.

Only for intentional – R. Eliezer in the Mekhilta specifies that talion does not apply in a case where the action was unintentional.⁸

The eye of a slave – Philo explains that the law of talion does not apply to a master who knocks out the eye of his slave, not because the action is less blameworthy,⁹ but rather because mutilating the master will only cause him to take revenge and to further abuse his slave. Thus, in such a case, the slave simply goes free.

"וְקַצֹּתָה אֶת כַּפָּהּ" in Devarim 25:12 – Some modern scholars have proposed that "כַּפָּהּ" refers to the woman's private parts (as in "כף הירך")‎.¹⁰ According to their suggestion, this law would be a close approximation of talion.¹¹ This would also account for the need for the verse to conclude with "לֹא תָחוֹס עֵינֶךָ".

Talion for perjured witnesses – According to this position, the verse in Devarim 19:21 is also rendered literally, and it speaks of a case where the false witnesses testified that a person had committed an assault for which he would have been punished by mutilation. Thus, they receive this very punishment which they had attempted to inflict.

"רַק שִׁבְתּוֹ יִתֵּן וְרַפֹּא יְרַפֵּא" – This approach can maintain that, in addition to being punished by losing his eye, the assailant must also compensate his victim for his medical expenses and loss of salary.¹² Alternatively, these payments applies only in a case where there was no permanent loss of limb.¹³

Monetary Compensation

"עַיִן תַּחַת עַיִן" is interpreted metaphorically, and monetary compensation is given for the exact value of the limb lost.

Sources: MishnaBava Kamma 8:1About the Mishna, Midreshei HalakhahMekhilta Mishpatim Nezikin 8Mekhilta DeRashbi Shemot 21:25Sifra Emor 14:20:7Sifre Devarim 190Sifre Ki Teitze 293About the MekhiltaAbout Mekhilta DeRashbiAbout SifraAbout Sifre Devarim, Talmud YerushalmiBava Kamma 8:1About the Yerushalmi, Talmud BavliChagigah 11aKetubot 33bBava Kamma 83b-84aSanhedrin 79a-bSanhedrin 87bAbout the Bavli, Targum Yerushalmi (Yonatan)Shemot 21:22-25Vayikra 24:17-21Devarim 19:15-21About Targum Yerushalmi (Yonatan),¹⁴ Midrash Aggadah (Buber)Shemot 21:22About Midrash Aggadah (Buber), R. Saadia Gaoncited by Ibn Ezra Shemot Long Commentary 21:23-24cited by Ibn Ezra Vayikra 24:19Tafsir Shemot 21:24Tafsir Vayikra 24:20Tafsir Devarim 19:21Tafsir Devarim 25:12About R. Saadia Gaon, R. ChananelCited by R. Bachya Shemot 21:24About R. Chananel b. Chushiel, RashiShemot 21:23-24Vayikra 24:20Devarim 19:21Devarim 25:12About R. Shelomo Yitzchaki, R. Yehuda HaLeviKuzari 3:46-47About R. Yehuda HaLevi, RashbamShemot 21:24About R. Shemuel b. Meir, R. Yosef Bekhor ShorShemot 21:24-25Vayikra 24:21About R. Yosef Bekhor Shor, RalbagBeiur Divrei HaParashah Shemot 21:24-25Shemot 21 Toelet 5Beiur Divrei HaParashah Vayikra 24:19-21Beiur Divrei HaParashah Devarim 19:21About R. Levi b. Gershom, Akeidat YitzchakShemot #46Vayikra #86Devarim #97About R. Yitzchak Arama, AbarbanelShemot 21:18Vayikra 24:10Devarim 19:14About R. Yitzchak Abarbanel, NetzivDevarim 25:12About R. Naftali Tzvi Yehuda Berlin

Meaning of the metaphor – The formulation of "עַיִן תַּחַת עַיִן" comes to teach that the assailant must make the victim whole again by compensating him in full for all aspects of his injury.¹⁵

"נֶפֶשׁ תַּחַת נָפֶשׁ" – Commentators disagree over whether this phrase (which appears immediately before "עַיִן תַּחַת עַיִן") is also to be rendered metaphorically:

• Monetary compensation – R. Yehuda HaNasi in the Mekhilta and Bavli maintains that the passage is consistent in its use of language, and that this phrase similarly refers to monetary compensation¹⁶ for a life which was taken inadvertently.¹⁷
• Capital punishment – The first opinion in the Mekhilta and most other commentators assert that this phrase is rendered literally, even though all of the parallel phrases in the following verse are not.¹⁸ Mekhilta DeRashbi and Sifra prove this from the verses in Bemidbar 35:30-31 which explicitly prohibit the exacting of blood money.

Judicial theory – This approach views the primary purpose of justice to be restitution. R. Yehuda HaLevi and R"Y Bekhor Shor emphasize that harming the perpetrator serves no purpose for his victim, who will be much better served if he is compensated for his loss.

Issues of implementation – Many of these sources emphasize that it would be near impossible to implement talion in a fair way, as there can be wide ranging variations in the degrees of injury and original physical conditions of different assailants or victims.¹⁹ They therefore claim that there is no alternative to monetary compensation, which can at least be adjusted to account as necessary for differing circumstances.

Biblical parallels – R. Yishmael in the Mekhilta²⁰ equates the laws of assault with the laws of property damage. These latter laws also contain the formula of "נֶפֶשׁ תַּחַת נָפֶשׁ", yet they explicitly mandate monetary compensation ("וּמַכֵּה בְהֵמָה יְשַׁלְּמֶנָּה") rather than retribution.²¹

"כַּאֲשֶׁר עָשָׂה כֵּן יֵעָשֶׂה לּוֹ" – This phrase and the similar words of "כַּאֲשֶׁר יִתֵּן מוּם בָּאָדָם כֵּן יִנָּתֶן בּוֹ" would appear to argue against this approach. See R. Saadia Gaon and R. Chananel who cite the parallel formulations in Shofetim 15:11 and Ovadiah 1:15-16, in an attempt to demonstrate that these need not imply exact measure for measure punishment.²²

Intentional / unintentional – According to this approach, these verses can refer to both intentional and unintentional personal injury.

The eye of a slave – For this position, there is not such a fundamental distinction between injuring a regular person or a slave, as the penalty in both is a financial one.

"וְקַצֹּתָה אֶת כַּפָּהּ" in Devarim 25:12 – R. Yehuda in the Sifre similarly reads this phrase as a metaphor for monetary payment. The Sifre also presents an alternative literal option that requires one to assume that the woman's actions constituted a life threatening danger, thereby justifying amputation of her hand.

Perjured witnesses – Ralbag notes the difficulty in this verse, as according to this approach there is no case where testimony can cause a loss of limb.

"רַק שִׁבְתּוֹ יִתֵּן וְרַפֹּא יְרַפֵּא" – Mekhilta DeRashbi cites this verse as proof that the penalty for a man who wounds another involves monetary compensation. R. Chananel adds that if the assailant himself loses a limb, he will not be able to pay the medical costs of his victim.

Two Tracks

Torah law reflects the validity of both the literal and metaphorical interpretations. There are a number of variations of this approach:

Case Dependent

The verse refers to talion, but monetary compensation may be implemented in some cases, depending on the preferences of the parties or the type of injury.

Sources: JosephusAntiquities 4:8:15Antiquities 4:8:33-35About Josephus, Ibn EzraShemot Long Commentary 21:23-24Shemot Long Commentary 21:29Shemot Short Commentary 21:25Vayikra 24:19Devarim 25:12About R. Avraham ibn Ezra, RambanShemot 21:24Vayikra 24:18About R. Moshe Nachmanides, ShadalShemot 21:24Devarim 25:12About R. S.D. Luzzatto, R. D"Z HoffmannShemot 21:18Shemot 21:22-25Vayikra 24:19-20Devarim 19:21Devarim 25:11-12About R. D"Z Hoffmann

Determining factors – This group of commentators present a number of different possibilities:

• Victim's choice – Josephus states that the victim is given the option of deciding whether to accept money instead.
• Perpetrator's choice – Ibn Ezra says that the perpetrator can choose whether to pay ransom for his limb.
• Court's choice – Shadal suggests that the Torah left the decision to the discretion of the judges,²³ in order to prevent a situation where a wealthy person can maim as he pleases as he would only need to pay compensation.
• Permanent or non-permanent injury – Ramban offers the possibility that permanent loss of limbs would be punished by talion, while non-permanent injuries would be compensated financially.

Judicial theory – According to Josephus, the primary goal of the law is to help the victim. Shadal highlights the need for penal code flexibility in order to maintain an orderly society.

Biblical parallels – Ibn Ezra references the case of an owner whose ox repeatedly gored who is also allowed to pay ransom instead of being killed.

"וְקַצֹּתָה אֶת כַּפָּהּ" in Devarim 25:12 – Ibn Ezra explains this verse also to refer only to a case where the woman cannot pay.

Evolving Society

The literal interpretation of the verse was its intended meaning for the generation of the Exodus, but the metaphorical understanding is its import for future generations.

Sources: Hoil MosheShemot 21:24Vayikra 24:19About R. Moshe Yitzchak Ashkenazi

Morality – The Hoil Moshe explains that the uncivilized society of former slaves required a harsh penal code, as monetary punishments would not have sufficed to deter people from committing assault.

Judicial theory – The Hoil Moshe emphasizes the deterrent aspect of the legal system.

Parallel cases – This type of approach is adopted by the Rambam²⁴ with regard to the need of the generation of the Exodus for a Mishkan and sacrifices. It is also implemented by the Hoil Moshe himself in several other instances.²⁵

Ideal vs. Reality

The Torah's formulation conveys that the perpetrator truly deserves to lose a limb, even though this is not the punishment which is actually implemented.

Sources: RambamIntroduction to the MishnaSefer HaMitzvot, Aseh 236Hilkhot Chovel UMazzik 1:2-5,9-10Hilkhot Rotzeach 1:7-8Moreh Nevukhim 3:41About R. Moshe Maimonides, SefornoShemot 21:24Vayikra 24:17About R. Ovadyah Seforno

Judicial theory and implementation – Seforno explains that while strict justice would require measure for measure retribution, practical concerns prevent its implementation.

¹ This version is found only in the Oxford manuscript of the Scholion, but not in the Parma manuscript.

² This appears to be the simple understanding of R. Eliezer's position as found in the Oxford, Munich, and Vatican manuscripts of the Mekhilta (and it also matches the version of R. Eliezer found in Lekach Tov Shemot 21:24). In these manuscripts, it is R. Yishmael who takes the position of monetary compensation, while R. Eliezer says "שאינו משלם אלא ממש" (the word "ממש" appears also in the version of R. Eliezer found in Bavli BK 84a – see below). On the general tendency of R. Eliezer's rulings to adhere to the literal (or simple) reading of the Biblical text (and the similarity of his rulings to the positions of other sources from the Second Temple period), see Y. Gilat, משנתו של ר' אליעזר בן הורקנוס, (Jerusalem 1968).

See, however, the early Constantinople and Venice printings of the Mekhilta, which read R. Eliezer instead of R. Yishmael in the earlier part of the passage, and "ממון" instead of "ממש" in the latter section (as well as attributing the latter statement to R. Yitzchak). These may be influenced by R. Ashi's statement in the Bavli BK 84a which reinterprets R. Eliezer's position to be saying merely that the payment is determined based on the value of the assailant's eye, but not that he actually loses his eye. [See also Yalkut Shimoni 338, in his version of the Mekhilta, who explains R. Eliezer in a way which conforms with R. Ashi's understanding.]

³ See also the Karaite commentaries of Yefet b. Eli in MGWJ (1897): 205 and Aharon b. Eliyahu in Keter Torah, Shemot p. 143. Ibn Ezra in his Short Commentary cites this position in the name of the Karaites ("המכחישים").

⁴ Cf. the RambamMoreh Nevukhim 3:41About R. Moshe Maimonides's similar formulation.

⁵ It should be noted, though, that many of these instances are with regard to murder – see Bereshit 9:6, Bemidbar 35:33, Shemuel I 15:33, Shemuel II 12:9-12 (murder and adultery), and Melakhim 21:19.

⁶ Cf. Ralbag's interpretation of this episode.

⁷ This would not be true for monetary compensation. Cf. Shadal below.

⁸ See also Philo who specifies that the law applies in a case where there is "plotting". However, it should be noted that the context of the verse appears to be injury to an unintentional bystander.

⁹ Cf. the parallel laws in Ancient Near Eastern codes.

¹⁰ See two different variations in L. Eslinger, "The Case of an Immodest Lady Wrestler in Deuteronomy XXV 11-12," VT 31 (1981): 269-81, and J. Walsh, "'You Shall Cut off Her…Palm'? A Reexamination of Deuteronomy 25:11–12", JSS 49:1 (2004): 47-58. They differ fundamentally on whether "וְקַצֹּתָ" means to cut off or to shave.

¹¹ Cf. Philo who offers an alternative explanation.

¹² Cf. R. Chananel below who rejects this possibility.

¹³ This is how some Karaite commentaries interpret the verse – see Aharon b. Yosef in HaMuvkhar Shemot p.42a. Cf. Ramban below.

¹⁴ Cf. Targum Yerushalmi (Fragmentary)Vayikra 24:20About Targum Yerushalmi (Fragmentary).

¹⁵ Cf. R. D"Z HoffmannShemot 21:18Shemot 21:22-25Vayikra 24:19-20Devarim 19:21Devarim 25:11-12About R. D"Z Hoffmann. According to this reading, the first "עַיִן" in the phrase refers not to the assailant's eye, but rather to the replacement being provided for the victim's eye. Alternatively, this position could explain that the Torah is expressing the need for compensation using hyperbolic language in order to emphasize the severity of the act. Cf. the similar (but yet fundamentally different) position of Ibn Ezra and Seforno below.

¹⁶ See below regarding use of the phrase in Vayikra 24:18.

¹⁷ The case in the Torah is one in which an uninvolved bystander was killed in the course of a fight between two other individuals. Regarding the verses in Bemidbar 35:30-31 which prohibit the taking of blood money for human life, see Abarbanel who explains that these refer only to a fully intentional or completely accidental killer, but not to a case in which one intended to kill one person and ended up accidentally killing another.

¹⁸ R. Yosef Bekhor Shor explains the rationale behind the distinction by pointing out that a living person can be compensated for bodily injury, but a dead person can no longer be compensated for his life.

¹⁹ The Yerushalmi raises the case of a blind assailant, Midrash Aggadah (Buber) notes the impossibility of taking away only one-third of someone's vision, and R. Saadia and R. Chananel add the concern that maiming a person may lead to additional fatal complications.

²⁰ See also the Sifra and Bavli Bava Kamma.

²¹ However, in the case of property damage, "נֶפֶשׁ תַּחַת נָפֶשׁ" indicates that a live animal can be transfered to compensate for the loss of the animal which was killed. This is not the case with regard to personal injury.

²² However, these parallels are suspect, as neither the verse in Shofetim, nor the verse in Ovadiah, refer to monetary compensation. Rather, both, unlike the verses regarding assault, refer to a retributive punishment.

²³ Cf. R. D"Z Hoffmann.

²⁴ See Moreh Nevukhim 3:32-34.

²⁵ See Hoil Moshe Shemot 21:20 "ואלו היה הדור ראוי היתה אוסרת לגמרי לקנות עבד", Vayikra 16:8 "ומי יודע מה דבר הורה משה רבנו בעל פה לנשיאי העדה וזקניה להודיע לבאים אחריהם בהתחלף מצב האומה ואמונותיה", Bemidbar 30:2. See also Shadal Shemot 21:12, Bemidbar 35:12.