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

"עַיִן תַּחַת עַיִן" – An Eye for an Eye

Exegetical Approaches

THIS TOPIC IS STILL BEING DEVELOPED AND UPDATED

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

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 closer approximation of talion.¹¹

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 Shofetim 190Sifre Ki Teitze 293About the MekhiltaAbout Mekhilta DeRashbiAbout SifraAbout Sifre, Talmud YerushalmiBava Kamma 8:1About the Yerushalmi, Talmud BavliChagigah 11aKetubot 33bBava Kamma 83b-84aSanhedrin 79a-bSanhedrin 87bAbout the Bavli, Targum Pseudo-JonathanShemot 21:22-25Vayikra 24:17-21Devarim 19:15-21About Targum Pseudo-Jonathan,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 25:12Tafsir Devarim 19:21About R. Saadia Gaon, R. ChananelCited by R. Bachya Shemot 21:24About R. Chananel, 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. Gershon, Akeidat YitzchakShemot #46Vayikra #86Devarim #97About R. Yitzchak Arama, NetzivDevarim 25:12About R. Naftali Z"Y Berlin

Meaning of the metaphor – The formulation of "עַיִן תַּחַת עַיִן" comes to teach that the aggressor must make full compensation.

"Life for life" – These commentators disagree if the laws regarding murder are to be understood in the same manner as the laws concerning other bodily damage:

• Physical retribution – Most of these commentators assert that the two halves of Shemot 21:22 refer to different types of punishments. While for inflicting other damages, the criminal is fined, for taking a life, he is indeed punished measure for measure.¹⁵ This is a somewhat difficult position for it assumes that part of the verse is understood literally and the rest is not, even though the same exact language is used throughout.
• Monetary compensation – Rabbi in Mekhilta and Rabbi in Bavli maintain that the punishment for killing is also monetary. This position, is thus consistent in its understanding of the entire verse.¹⁶ Mekhilta DeRashbi and Sifra, though, question the approach from Bemidbar 35:30-31 which explicitly prohibits taking a monetary redemption instead of a life. Abarbanel differentiates between the cases, suggesting that the verses in Bemidbar refer to an intentional killer, while Shemot does not.¹⁷

Judicial theory – This approach highlights the compensatory aspect of justice. R. Yehuda Halevi emphasizes that harming the perpetrator serves no purpose for the victim so punishment should focus less on hurting the wrongdoer and more on compensating the one wronged.

Problematic verses:

• "כַּאֲשֶׁר עָשָׂה כֵּן יֵעָשֶׂה לּוֹ" – R. Saadia Gaon and R. Chananel compare this formulation to the similar ones in Shofetim 15:11 and Ovadiah 1:15-16, where it is clear that it does not refer to exact measure for measure punishment but rather to general compensation.
• "כֵּן יִנָּתֶן בּוֹ" – The word "בּוֹ" in this verse is difficult for this position as it suggests that something is physically being done to the perpetrator. R. Saadia Gaon asserts that בּוֹ can be the equivalent of "עליו" and the verse is saying that if one inflicts a blemish upon another, a fine will be imposed upon him. The Bavli further suggests that the language of "יִנָּתֶן" hints to something that can be given from hand to hand, like money.

Supporting verses:

• "רַק שִׁבְתּוֹ יִתֵּן וְרַפֹּא יְרַפֵּא" – In these verses, it is explicit that a man who wounds another man must pay a fine. If the verses are to be consistent, then,"חַבּוּרָה תַּחַת חַבּוּרָה" (and by extension the rest of the verse) must also refer to some sort of monetary compensation.¹⁸
• "וּמַכֵּה בְהֵמָה יְשַׁלְּמֶנָּה" – Some of these commentators¹⁹ equate the laws of injury to people with the laws of injury to animals where the verse explicitly mentions monetary compensation.
• "וְלֹא תִקְחוּ כֹפֶר לְנֶפֶשׁ רֹצֵח" – Mekhilta DeRashbi and others point out that this verse appears to single out murder as the only exception to the concept of accepting a monetary ransom. As such it appears to support the idea that in other cases of corporeal punishment, a ransom is an option.

Two Tracks

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

Ideal vs. Reality

Sources: Ibn EzraShemot Long Commentary 21:23-24Shemot Long Commentary 21:29Shemot Short Commentary 21:25Vayikra 24:19Devarim 25:12About R. Avraham ibn Ezra, 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

Evolving Halakhah

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

Case Dependent

Sources: JosephusAntiquities 4:8:15Antiquities 4:8:33-35About Josephus, RambanShemot 21:24Vayikra 24:18About R. Moshe Nachmanides, ShadalShemot 21:21Devarim 25:12About R. S.D. Luzzatto, R. D"Z HoffmannShemot 21:18Shemot 21:22-25Vayikra 24:18-20Devarim 19:21Devarim 25:11-12About R. D"Z Hoffmann

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. Ali 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 seems to be injury to an unintentional bystander.

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

¹⁰ See two very 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 YerushalmiVayikra 24:20About Targum Yerushalmi.

¹⁵ R. Yosef Bekhor Shor explains the rationale behind the different punishments, pointing out that if a person killed you can't compensate him for his life and thus a different punishment is needed.

¹⁶ Cassuto attempts to prove this through logic. The verse speaks of a person who has killed both a women and a baby. Since he obviously cannot be punished by death twice, the verse must not be referring to capital punishment but rather to payment.

¹⁷ He says that Shemot is an exceptional case which speaks of a person who is neither an accidental killer nor an intentional murderer. The killer did intend to kill someone, but ended up killing another. He, thus, is neither killed nor sent to a city of refuge but instead is given a monetary punishment.

¹⁸ See Mekhilta DeRashbi, R. Chananel, R. Yosef Bekhor Shor, Rambam, and Ralbag who all bring this proof. R. Chananel also questions, if the criminal himself is to lose a limb, what is the justice in him also having to pay the medical costs of the victim?

¹⁹ See R. Yishmael in Mekhilta, Sifra, Bavli Bava Kamma, R. Yosef Bekhor Shor, and Ralbag.