Parashat Emor

Iyunim - Weekly insights on the Parasha with commentaries by Nehama Leibovitz, za"l

Few are the verses from the Bible which have been so frequently and widely misunderstood by Jew and non-Jew as verse 24:20, from which our title is taken. This misconception has transformed our text into a symbol, the embodiment of vengeance at its cruelest level. One who wishes to express his opposition to forgiveness, concession, and compensation, insisting instead on his pound of flesh, on retaliation of the most brutal and painful kind, resorts to the phrase: “Eye for eye,” a formula which conjures up a vision of hacked limbs and gouged eyes. Even he who is familiar with the traditional Rabbinical interpretation of our text, “eye for eye,” i.e., monetary compensation, does not rule out the possibility of this being merely an apologetical explanation, a later toning down of ancient barbarity, humanization of the severity of the Torah by subsequent generations.

But this is not the case. On the contrary, our Sages and commentators adduce many and varied proofs indicating that the plain sense of the text can be no other than monetary compensation. We shall cite here several of these proofs.

Let us first read the phrase in its context. It occurs twice in the Scriptures:

If men contend and one strike the other with a stone or with his fist, but he does not die, but is confined to bed; Ex. 21:18

If he gets up again and walks abroad with his staff, then the one who struck him shall be acquitted; only he shall pay for the loss of time and have him thoroughly healed. 21:19

If men strive together and hurt a woman with child so that she have a miscarriage, yet no harm follows, he shall surely be fined… 21:22

But if any harm follows, then you shall give life for life, 21:23

eye for eye, tooth for tooth, hand for hand, foot for foot, 21:24

burn for burn, wound for wound, bruise for bruise. 21:25

The second occasion is in our Parasha :

And he who kills any man shall surely be put to death. Lev. 24:17

And he who kills a beast shall make it good, life for life. 24:18

If a man maim his neighbor; as he has done, so shall it be done to him; 24:19

breach for breach, eye for eye, tooth for tooth; as he has maimed a man, so shall it be done to him. 24:20

And he who kills a beast, shall make it good; an he who kills a man, shall be put to death. 24:21

The Talmud (Bava Kamma 83b-84a) adduces a whole series of arguments providing that these verse must allude to monetary compensation for the injury inflicted. Here are two of them:

R. Shimon bar Yohai stated: Eye for eye – money. You say money, but perhaps it means literally an eye? In that case if a blind man blinded another, a cripple maimed another, how would I be able to give an eye for an eye literally? Yet the Torah states (Lev. 24:22): One law there shall be for you – al law that is equitable for all of you.

It was taught in the school of Hezakia: Eye for eye, life for life, and not a life and an eye for an eye; for should you imagine it is literally meant, it would sometimes happen that an eye and a life would be taken for an eye, for in the process of blinding him he might die.

These two arguments are based on the wording of the text disproving the literal interpretation of the grounds that lex talionis cannot be practically implemented (R. Shimon b. Yohai) or that its execution is not compatible with the maintaining of any sort of equivalence between the crime and the punishment (The school of Hezekiah), while the expression “eye for eye” by all accounts indicates an equitable correspondence between the deed and its recompense. Saadya Gaon resorted to these same arguments in his polemics twice in his Pentateuchal commentary – in Exodus and in our Parasha. Let us study both carefully. In Ex. 21:24 he states:

“Eye for eye”: Rav Saadya said we cannot take this text literally. For if a man deprived his fellow of a third of his normal eyesight by his blow, how can the retaliatory blow be so calculated as to have the same results, neither more nor less, nor blinding him completely? Such an exact reproduction of the effects is even more difficult in the case of a wound or bruise which, if in a dangerous spot, might result in death. The very idea cannot be tolerated. Ben Zuta (a Karaite) retorted: But surely it is explicitly written: (Lev. 24:20) As he has maimed a man so shall it be rendered to him. The Gaon answered: The word on, implying so shall punishment be imposed upon him. Ben Zuta retorted: As he did, so shall be done to him! The Gaon replied: We have in the case of Samson (Judges 15:11): As they did to me, so I did to them, and Samson did not take their wives and give them to others (as they had done to him, but only punished them. Ben Zuta retorted: What if the attacker was a poor man, what would be his punishment? The Gaon replied: What if a blind man blinded one with normal eyesight, what should be done to him? The poor man can become rich and pay; only the blind man can never pay for what he did!

To sum up: We cannot give an adequate explanation o the precepts of the Torah without relying on the words of our Sages. For just as we received the written Torah from our forefathers, so we received the oral Torah – there is not difference between them.

The Karaite attacked the Rabbinic interpretation on two counts, first from the wording of the text. The Gaon demonstrated that the two phrases do not necessarily bear out the Karaite interpretation. (Benno Jacob notes that the case of Adoni-Bezek – As I have done, so God has requited me (Judges 1:7) is no proof to the contrary, for there he uses a different verb in each clause of the phrase, and is therefore not comparable to our verse). The proof from Samson is the clearest indication that the phraseology when… implies an equivalent or analogous, but not identical punishment. The Karaite then forsook the argument from the wording of the text and attacked the Rabbinical interpretation from the point of view of feasibility of its implementation. Here he evidently did not realize that by doing so he was advancing the objection that could be raised against all judicial fines. Just as he asked: What if the attacker is a poor man, so he could have asked: What if any defendant on whom a fine was imposed was a poor man? He thus played into R. Saadya’s hands by showing him that the same flaw in execution that could be pointed out in the monetary interpretation could be objected in the literal one, bringing in R. Shimon b. Yohai’s argument.

The other context where Ibn Ezra cites Saadya Gaon’s polemic with Ben Zuta is in our Parasha (24:19):

“So shall be done to him” Samson similarly said: “as they did to me so I did to them” (Judges 15:11). The Gaon adduced common sense arguments showing that breach for breach cannot be taken literally (but only monetary compensation is indicated), since the original blow was inflicted inadvertently. How then can an identical blow be deliberately inflicted? And if administered on a dangerous spot, the victim might die. The same applies to the eye. If the victim was deprived of a third of his sight, how can such a defect be exactly reproduced in the smiter? But the view of tradition is correct that a monetary equivalent is meant. As for the argument, what if the inflictor is poor? Our answer is: the text speaks of the usual case, and furthermore, the poor man may become rich. Their argument may also be countered by the case of the blind man who blinded a person with normal sight.

Here Saadya Gaon resorts to the argument of the school of Hezekia – Eye for eye, and not a life and an eye for an eye.

But the Talmud does not confine itself to purely technical arguments that rule out the feasibility of executing lex talionis. It adduces other texts too, one of which (cited also by Benno Jacob) we cite here:

Scripture states: “you shall take no ransom for the life of a murderer who is guilty of death” (Num. 35:31), implying that for the life of a murderer you may take no ransom, but you may take ransom Bava Kamma for the main organs of the human body which do not grow back (Bava kamma 83b).

The wording of the text, “who is guilty of death” that there are other crimes not punishable by death. If we study the context we shall find it implied that a guilt other than capital offense can only be that a person who maim another.

If the text therefore states that the ransom may not be taken for the murderer, if follows that where capital punishment is not involved, ransom should be taken.

This is one of the arguments advanced by Maimonides in Hilkhot Hovel uMazik 1, 3-6:

The text: “as he maimed a man, so shall it be rendered him” (Lev. 24:20) does not mean the literal inflicting of the identical maiming on the guilty person, but merely that though the latter deserves such maiming, he pays the monetary equivalent. For we are told: You shall take ransom for the life of a murderer, implying that ransom is ruled out only in the case of a murderer, but is indicated in the case of one who maims another…

Whence that is the statement “eye for eye” monetary compensation is indicated? Since it is stated: bruise for bruise, and we have the explicit ruling thereon: If a man strikes his fellow with a stone or his fist…he shall only pay for the loss of time and have him thoroughly healed (ex. 21:18-19) indicating that the “for” in bruise for bruise refers to payment, and the same applies to the “for” in the other limbs.

Though all these things would seem implicit in the wording of the Written law, transmitted directly by Moses from Mount Sinai, all come under the heading of a practical ruling handed down to us. So our ancestors saw matters judged in the court of Joshua, of Samuel the Ramathite and every court that has existed since the day of Moses until now.

The first proof advanced by Maimonides is the last one we cited from the Talmud, based on Numbers 35:31. But we may observe that he does not regard it as convincing, since he explicitly asks immediately afterwards: Whence that monetary compensation is indicated? Lehem Mishne, one of Maimonides’ commentators, indeed queries this approach, asking:

Surely, Maimonides has already proved his point from the verse “you shall take no ransom for the life of a murderer” which rules out the taking of ransom in the case of a murderer, but not for maiming the main organs of the human body: Why then does he ask, Whence?

He answers that from the first text, it may only be proved that ransom may be taken from maiming, but not—since it is an indirect proof from a negative statement – that it must be taken, and that counter-maiming is ruled out. Maimonides therefore goes on to demonstrate that there are no two options and that “eye for eye” can mean monetary compensation only. His proof is indeed convincing, and we shall revert to it later. Maimonides, however, was not content with it. But his conclusive argument is that such is our tradition as handed down by word of mouth from one generation to the next in every court of law that existed from the days of Moses onwards.

We cite here Rabbi A.Y. Kook’s observation:

The author states that Maimonides’ view that bodily harm is made good by monetary compensation is based on the Oral Law handed down by Moses from Sinai, and that “eye for eye” is not to be taken literally. This is truly Maimonides’ opinion.

However, it should be noted that R. Solomon Luria, in his Yam shel Shelomo (at the beginning of Chapter 8 of Bava Kamma takes issue with Maimonides and regards the interpretation of the written text as conclusive, and the plain sense of it bears it out. For if “eye for eye” were to be taken literally, bruise for bruise would have to be understood likewise. Yet this is ruled out since the Torah states explicitly, “he shall only pay for the loss of time and have him thoroughly healed” (Ex. 21:19). Thus, monetary compensation is due for bodily harm caused.

Benno Jacob also goes to this chapter for additional proof, citing the subject arrangement of the verses 18-22. They all deal with bodily harm, and are divided into two sections, the first of which is further subdivided as follows:

1. Bodily harm inflicted by man on his fellow:

1. Deliberate: 18-19 (re slave: 20-21)
2. Inadvertent: 22-25 (re slave: 26-27)

1. Bodily harm inflicted by the ox of another: 28-31 (re slave: 32).

Now where is “eye for eye” or “tooth for tooth” mentioned in the text? Surely in connection with inadvertent action, whereas in the case of deliberate maiming, we are explicitly told (v. 19) that only loss of time and medical care has to be paid for. Were “eye for eye” to be taken literally, the penalty for inadvertent maiming would be greater than that for deliberate one.

But Benno Jacob learns the monetary implications of “eye for eye” form the very wording of our text, in contrast to most of our commentators who maintain that the literal wording does indicate that the actual cutting off of a limb is envisaged, but that we must resort to exegesis. B. Jacob adduces proof from the word thou shalt give (Ex. 21:23), indicating that we take nothing from the smiter but that he is compelled to give, which can only mean compensation. Had the text meant counter-maiming, it would not have employed the term give which implies getting or taking something from the other party. Had the text meant the removal of a limb, what in such a case would the victim have received in his hand, so to speak, from the smiter?

But his main proof is from the word “for”. He shows that the fact that “for” implies monetary equivalence rather than identity is proved not only by some texts, as:

He shall let him go free (on account of) his eye
Ex. 21:26

But that in his view in no text does “for” ever imply the identity of the exchange. On the contrary, “for” has an entirely different usage. A is called on to give, do, or suffer instead of B, because B cannot give, do, or suffer that same thing. “For” never implies that A has to give or suffer anything because B has given or suffered the identical thing. This, according to Benno Jacob, is the source of all the misunderstanding of our text. This may be proved from the Biblical succession of kings. One king dies and another rules in his stead. Because his predecessor is no longer capable of ruling, his successor comes along, and exercises his functions in place of him. Or, Avraham offers up the ram for a burnt-offering in place of his son. Yitzhak was not offered up, so the ram came as a substitute. Not that the ram was offered up too, just because Yitzhak had been offered up, which would be the interpretation if we followed the approach mistakenly adopted by those who take “eye for eye” literally.

The same point emerges from Judah’s words in Genesis 44:33:

And now, I pray thee, let thy servant remain instead of the lad, a slave to my lord. Gen. 44:33

In other words, let not Benjamin be the slave, but I shall be the slave instead of him. there are many such examples. The one most appropriate to our context is Joshua 2:14:

“Our lives—for yours,” i.e., if you will not divulge our whereabouts and betray us, and you are caught, we shall give ourselves up to be killed and you shall not be killed. This is the force of the word “for” – instead of the suffering or the death of the other. Accordingly. “eye for eye” implies that he who plucks out the eye of his fellow shall give something to the victim which will come in place of that eye which can no longer perform its functions, and that is monetary compensation.

In this respect, Benno Jacob takes issue with most commentators, both ancient and modern, Jewish and non-Jewish, who maintain that the text does literally mean the actual maiming of the smiter. According to Jacob, the literal wording of the text can mean nothing else but monetary compensation.

But we may ask, as does Maharal of Prague and many others in his Gur Arye supercommentary on Rashi, why, if money is indeed indicated, does not the text state explicitly, he shall pay him the value of his hand or blemish? He answers:

That we should not imagine that once the smiter has paid compensation, he is completely quit, just as in the case of killing a beast where he pays up andhas no further obligations. But that is not the case. Though he has compensated the victim for the injury, he has still not discharged his obligation until he has asked his forgiveness. For this reason, the Torah states that the punishment would be to be similarly maimed if that were possible, but that is impossible since, as the Talmud explains, sometimes the smiter may be blind and he blinded his victim in one eye, and, “as he has done to him” cannot be complied with. It is therefore monetary compensation that has to be paid.

This basic difference between causing bodily harm to man and animal is outlined by Maimonides in Hilkhot Hovel uMazik 4, 9-11:

One who causes bodily injury to his fellow cannot be compared to one who damages his goods. For once the damage to the goods has been made good, the guilty party has made atonement, whereas he who causes bodily injury to his fellow, though he has paid him the five dues (injury, pain, loss of time, medical care, shame) he has made no atonement even if he offered up on the altar all the rams of Navot. His iniquity is not forgiven until he has asked the victim’s forgiveness and been forgiven. It is forbidden for the injured party to be cruel and unforgiving. This is not the Jewish way, but as soon as the guilty party has sought his forgiveness and made supplication once or twice, and he knows that the smiter sincerely regrets his action, he should forgive him. The quicker he forgives, the better, and his action meets with approval of the Sages. There is further difference between bodily injuries and damage to his goods. He who instructs his fellow to blind him or cut off his leg, guaranteeing him exemption from all liability, is yet liable in respect of the five dues (i.e., the injured party would have to be paid for the injury, pain, loss of time, medical care, and shame involved though he did it with the victim’s consent).

In other words, a man cannot dispose of his limbs in the same way as he can dispose of his property since his limbs, his body, are not under his authority. He is not master of his body, but He to Whom both body and soul belong is Master of them.

One who pays compensation for the loss of sight does not make good the damage as one who damages his fellow’s goods. The money only serves to make good the monetary damage involved in the loss of the eye or hand, but the actual loss of the eye can never be made good. Injury to another human being is a crime that cannot be made good by ransom or monetary payment.

This is the reason why the Torah did not use the expression, He shall pay for his eye. This emerges even more clearly from the verse of our Parasha which we cited at the beginning. After the punishment for mortally injuring a man or beast is stated (v. 17-18) comes the punishment of the one who causes bodily injury to which the punishment for the one who injures a beast is not juxtaposed. For in the case of man the difference between mortal injury (murder) and maiming is qualitative (death—money), whereas in the case of beast there is merely a quantitative difference between killing it ad injuring it (greater or lesser compensation according to the injury).

Our Parasha concludes by contrasting both:

He who kills a beast shall make it good, but he who kills a man shall be put to death. 24:12

The verse appears superfluous, a repetition of the previous, unless we bear in mind that it wishes to impress upon us the difference between man’s responsibility for his fellow’s goods and his responsibility for his fellow’s life as a human being created in the image of God.

1. Talmud Bava Kamma 84a states:

Rav Ashi stated: The implication of tahat may be analogically ascertained from (the subject regarding) ox. Here it is written, eye for eye, and it is written there (Ex. 21:36), He shall surely pay ox for ox. Just as in the latter case monetary compensation is indicated, so also here.

Does the above interpretation agree with any proofs cited in this chapter?

2. In his HaKetav veHaKabalah, R. Yaacov Tzvi Mecklenburg observes on Lev. 24:19-20:

This passage is very difficult. The plain sense would seem to indicate clearly that the Torah prescribes a bodily punishment for the one who inflicts bodily injury, a course which runs counter to man’s nature. The true meaning has been handed down to us by our Sages: the inflicter of injuries could never receive a bodily punishment, but should pay compensation. The commentaries have therefore said that the Torah mentions here only what punishment the inflicter of bodily injuries deserves – as he had done, so shall be done to him, that is to say, that he should by rights have received such a punishment. But this will not satisfy the thirst of those that search for truth. How comes the Torah to refer to the punishment that should have been inflicted on him, and ignore his real punishment?

Does the above confirm in its assumptions to what we cited in the name of Benno Jacob or any other of the views referred to in the chapter?

For study in depth of “eye for eye” we strongly recommend: Rabbi J. Horowitz, Franfurt am Main: Auge um Auge, Zahn um Zahn, Festschrift zu Hermann Cohens siebzigstem Geburtstage, Seite 609-658 Bruno Cassirer Verlag, Berlin 1912.