Drasha 18 May 2024

 Leviticus 24:19-20 

If any party maims another: what was done shall be done in return—fracture for fracture, eye for eye, tooth for tooth.

This portion is a call-back to Exodus 21 with its more pedantic, “life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.“

A literal reading would appear to be a barbaric form of justice and retribution. Furthermore, it doesn’t distinguish between intentional and accidental damage. If you hit another car and the other driver suffers a fractured rib, should your rib be fractured as well? Who is going to do it? And how does it help the other driver get his car fixed, or get back to work? This parshah appears to be an affront to our modern sensibilities and conceptions of how justice should be administered. However, the sages turned this literal reading on its head.

In a 2016 article in Scientific American, called The Psychology of Disproportionate Punishment researchers found humans are prone to “intergroup bias.” When online participants were shown a video of a crime and asked to deliberate on appropriate punishment, they were generally reasonable and fair. However, when asked to make a split-second decision, the results were dramatically different: If the person was considered an “outsider,” they were subjected to vicious retribution.

The article concluded, “While our slow, thoughtful deliberative side may desire to maintain strong standards of fairness and equality, our more basic, reflexive side may be prone to hostility and aggression to anyone deemed an outsider.” 

So perhaps the Torah isn’t justifying violence so much as demanding restraint and restricting the retribution to be no worse than the crime. Morris J Fish, in the Oxford Journal of Legal Studies, argued that proportionality is a moral principle of punishment. 

“Eye for an eye” seems to have been borrowed from Babylonian laws. The Code of Hammurabi (circa 1750 BCE) states:

• If a man has destroyed the eye of a man of the gentleman class, they shall destroy his eye .... 
• If he has destroyed the eye of a commoner ... he shall pay one mina of silver. 
• If he has destroyed the eye of a gentleman's slave ... he shall pay half the slave's price.

The Torah introduces two key differences. First, in Babylonian law crimes against one's social betters were punished more severely, whereas the Torah states, “You shall have one standard for strangers and citizens alike.” Second, in the Code of Hammurabi the punishment for theft is death whereas the Torah values human life ahead of personal property.

Regardless of the intent, the Rabbis in the Gemara found “eye for an eye” impossible for practical reasons:

• Rabbi Shimon Bar Yochai argues it is impossible to inflict the exact same injury on the perpetrator as that suffered by the victim, with the example of a victim who is partially blinded in one eye.
• Beit Hezekiah notes the process of inflicting injury on the perpetrator may result in a more unjust outcome, using the example of maiming a person causing complications leading to death. 
• Sa‘adia Gaon asked, “If a blind man should blind the eye of a sighted person, what should the punishment be?”

They all agreed the Torah must refer to monetary compensation. Maimonides wrote:

How do we know that the intent of the Torah's statement with regard to the loss of a limb, "an eye for an eye," is financial restitution? That same verse [in Exodus 21] continues "a blow for a blow." And with regard to the penalty for giving a colleague a blow, it is explicitly stated: "When a man strikes his colleague with a stone or a fist…he should pay for his being idled and for his medical expenses." Thus, we learn that the word tachat (תחת) mentioned with regard to a blow indicates the necessity for financial restitution, and so one can conclude that the meaning of the same word with regard to an eye or another limb is also financial restitution.

Ayin tachat ayin, eye for eye. 'תחת' (tachat) literally means “under” but contextually means “in place of.” Consider how it is used in Genesis 22 when Abraham offers the ram as a sacrifice in place of his son Isaac, and again in Genesis 44 when Judah begs Joseph keep him in place of his brother Benjamin.

Lastly, Exodus 21 says, “if a ransom is demanded, the owner may redeem his life by the payment of whatever is demanded.” And Numbers 35 says, “You may not accept a ransom for the life of a murderer.” In other words, kofer, a monetary payment for atonement, can take the place of bodily punishment for any crime except murder, and that exception is only because the Torah places such a high value on human life that there can be no possible compensatory payment.

(I will add that even for murder, the Talmud set such a high bar that they effectively did away with the death penalty, and today all major branches of Judaism reject capital punishment.)  

Rabbi Jonathan Kligler notes, “The Talmud even develops a comprehensive set of standards for compensation, taking into account damages, pain, medical expenses, unemployment, and mental anguish.” However, their standards were a bit funny:

• For damages, the court appraises how much a slave would be worth before and after the injury.
• For pain, the court evaluates how much money a person would be willing to take in order to be made to suffer in the same way.
• For loss of livelihood, the court uses the pay scale for a “watchman of cucumbers.” (When I read that, I thought it must be a joke, but Isaiah 1:8 says “The daughter of Zion is left like a shelter in a vineyard, like a watchman’s hut in a cucumber field.” Apparently, it was a thing, although "cucumbers" was a generic term for melons.)

It should be noted there is not a single case where punishment involved amputation or mutilation in all Hebrew Scripture. This is not a question of rabbis reinterpreting Torah for a more enlightened age, but hints that the Oral Torah always taught that this was not to be taken literally.

This begs the question, why didn’t the written Torah just say this? Maimonides suggested that had the Torah simply ordered the aggressor to pay damages, this would have actually diminished the value of life. A wealthy man would have thought it sufficient to pay the victim and be done with it. The Torah is teaching that if one person harms another, he should understand how it would feel to have the same done to him, contemplate the profound damage to the quality of life he has caused, beg forgiveness from the injured party, perform Teshuva and ensure a similar act will not be repeated.

Rabbanit Judith Levitan put it similarly: “Perhaps the seemingly harsh language of the Torah is an echo of the victim’s roar of pain. It is a reminder that whatever compensation is provided, money remains an imperfect way of making up for the loss suffered. What is lost – the ability to see, to walk, to feel safe, to trust - can never be fully replaced. The victim’s experience and memory of the violent act can never be fully erased… We need the raw emotion of the written law, tempered with the logical and measured approach of the oral law, to help the victim acknowledge the pain and then contain it.”

So “eye for an eye, tooth for a tooth” is not a barbaric and outdated form of retribution. In fact, Leviticus (va-yikRA) 19 specifically forbids this: “You shall not take vengeance or bear a grudge against members of your people. Love your fellow [Israelite] as yourself.” Instead, it is a call for empathy and restraint, seeking a way to make the victim whole whilst reminding the perpetrator that this is not possible, and telling us all we should always be mindful about how we treat others.