Competing Judicial Considerations
From time immemorial, penal codes have grappled with finding the appropriate balance between the often competing objectives of restitution, retribution, rehabilitation, incapacitation, and deterrence. This issue is particularly poignant in the case of a person who assaults another. If one person gouges out another person's eye or chops off another person's hand, what form of punishment should he receive? In an ideal world, perhaps one would be able to remove the assailant's eye or hand and transplant it into the victim. This might achieve a reversal of some of the damage caused to the victim, while also serving as a powerful message to the would be perpetrator. But, given the current medical reality in which one cannot simply transplant an entire eye or hand from any person to another,1 what would be the closest approximation of justice served?
On the one hand, exacting the eye or hand of the aggressor might be the most effective form of deterrence, even if it could not be transplanted. Yet, this method offers little tangible benefit to the injured party. In contrast, monetary payment could help compensate the victim for the loss of his vision, but it does not provide nearly the same satisfying sense of just deserts as would physical punishment.
Two passages in the Torah present the penalties for various forms of assault and battery, and the literal reading of each seems to indicate that lex talionis (Latin for law of retaliation, i.e. measure for measure physical punishment) is employed:
The first of these is found in Shemot 21:22-25:
(כב) וְכִי יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה וְיָצְאוּ יְלָדֶיהָ וְלֹא יִהְיֶה אָסוֹן עָנוֹשׁ יֵעָנֵשׁ כַּאֲשֶׁר יָשִׁית עָלָיו בַּעַל הָאִשָּׁה וְנָתַן בִּפְלִלִים. (כג) וְאִם אָסוֹן יִהְיֶה וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ. (כד) עַיִן תַּחַת עַיִן שֵׁן תַּחַת שֵׁן יָד תַּחַת יָד רֶגֶל תַּחַת רָגֶל. (כה) כְּוִיָּה תַּחַת כְּוִיָּה פֶּצַע תַּחַת פָּצַע חַבּוּרָה תַּחַת חַבּוּרָה.
(22) If men fight and hurt a pregnant woman, and her children came out, but there was no misfortune, he shall be punished as the woman's husband demands and it shall be put before the judges. (23) And if there was a disaster, then you shall take life for life. (24) Eye for eye, tooth for tooth, hand for hand, foot for foot. (25) Burn for burn, wound for wound, bruise for bruise.
This principle is repeated almost verbatim in Vayikra 24:19-20:
(יט) וְאִישׁ כִּי יִתֵּן מוּם בַּעֲמִיתוֹ כַּאֲשֶׁר עָשָׂה כֵּן יֵעָשֶׂה לּוֹ. (כ) שֶׁבֶר תַּחַת שֶׁבֶר עַיִן תַּחַת עַיִן שֵׁן תַּחַת שֵׁן כַּאֲשֶׁר יִתֵּן מוּם בָּאָדָם כֵּן יִנָּתֶן בּוֹ.
(19) And if a man cause a blemish in his neighbor; as he has done, so shall it be done to him. (20) Fracture for fracture, eye for eye, tooth for tooth; as he has caused a blemish in a man, so shall it be done in him.
A third passage in Devarim 25:11-12 similarly describes the administering of bodily punishment in a case of assault:
(יא) כִּי יִנָּצוּ אֲנָשִׁים יַחְדָּו אִישׁ וְאָחִיו וְקָרְבָה אֵשֶׁת הָאֶחָד לְהַצִּיל אֶת אִישָׁהּ מִיַּד מַכֵּהוּ וְשָׁלְחָה יָדָהּ וְהֶחֱזִיקָה בִּמְבֻשָׁיו. (יב) וְקַצֹּתָה אֶת כַּפָּהּ לֹא תָחוֹס עֵינֶךָ.
(11) If men fight one with another, and the wife of one of them comes near to rescue her husband out of the hand of him who strikes him, and she stretches out her hand, and seizes him by his private parts. (12) Then you shall cut off her hand; your eye shall have no pity on her.
Finally, in discussing the punishment of perjured witnesses, Devarim 19:19-21 states that talion punishment is meted out, implying that the witnesses' testimony would have caused the dismembering of the falsely accused person:
(יט) וַעֲשִׂיתֶם לוֹ כַּאֲשֶׁר זָמַם לַעֲשׂוֹת לְאָחִיו וּבִעַרְתָּ הָרָע מִקִּרְבֶּךָ. (כ) וְהַנִּשְׁאָרִים יִשְׁמְעוּ וְיִרָאוּ וְלֹא יֹסִפוּ לַעֲשׂוֹת עוֹד כַּדָּבָר הָרָע הַזֶּה בְּקִרְבֶּךָ. (כא) וְלֹא תָחוֹס עֵינֶךָ נֶפֶשׁ בְּנֶפֶשׁ עַיִן בְּעַיִן שֵׁן בְּשֵׁן יָד בְּיָד רֶגֶל בְּרָגֶל.
From the simple reading of the above texts, it would appear that the Torah favors retributive justice over financial compensation.2 However, other verses may indicate that monetary payments do exist in some cases of bodily injury. One example is Shemot 21:18-19:
(יח) וְכִי יְרִיבֻן אֲנָשִׁים וְהִכָּה אִישׁ אֶת רֵעֵהוּ בְּאֶבֶן אוֹ בְאֶגְרֹף וְלֹא יָמוּת וְנָפַל לְמִשְׁכָּב. (יט) אִם יָקוּם וְהִתְהַלֵּךְ בַּחוּץ עַל מִשְׁעַנְתּוֹ וְנִקָּה הַמַּכֶּה רַק שִׁבְתּוֹ יִתֵּן וְרַפֹּא יְרַפֵּא.
(18) And if men fight, and one strikes the other with a stone or with a fist, and he does not die, but rather becomes bedridden. (19) If he rises and walks outside upon his staff, then he that struck him shall be guiltless; he shall only pay for the loss of his work and provide for his healing.
Furthermore, what if either the assailant or victim is poor or rich or blind – how should these factors impact the verdict? Or what if a person only partially blinds another person or knocks out only a baby tooth – how does one mete out justice in such a case using a talion method?3 And, practically, should the potential for additional medical complications that may or may not result from administering a corporal punishment play a role in selecting the appropriate penalty?
Partially in response to these questions, the overwhelming majority of Talmudic sages rule that in the case of bodily harm, the guilty party pays restitution rather than being mutilated himself. But is this the simple interpretation of the verses in the Torah? Does the peshat of the Biblical texts differ from the Rabbinic verdict? If so, why is this? And, most importantly, how can the peshat and derash be reconciled?