"עַיִן תַּחַת עַיִן" is understood literally, and talionic retribution is administered.
– 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.
– 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
– 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
"עַיִן תַּחַת עַיִן" is interpreted metaphorically, and monetary compensation is given for the exact value of the limb lost.
, Midreshei Halakhah
, Talmud Yerushalmi
, Talmud Bavli
, Targum Yerushalmi (Yonatan)
,14 Midrash Aggadah (Buber)
, R. Saadia Gaon
, R. Chananel
, R. Yehuda HaLevi
, R. Yosef Bekhor Shor
, Akeidat Yitzchak
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.
– 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.
Torah law reflects the validity of both the literal and metaphorical interpretations. There are a number of variations of this approach:
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.
– 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.
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.
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.
– 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.
Judicial theory and implementation – Seforno explains that while strict justice would require measure for measure retribution, practical concerns prevent its implementation.