Eye for an Eye?

This week’s Torah portion, משפטים, “Mishpatim,” brings together a fundamental principle in the system of Jewish law with the underlying ethical philosophy of Judaism. The awareness and proper understanding of this unique structure goes a long way in dispelling false and at times malicious charges against Judaism and its followers. Once again ignorance of Judaism is the source of this evil attitude. Knowledge remains the only true antidote.

Early in the parsha, we come across two famous verses, “Eye for an eye, tooth for a tooth, hand for a hand, foot for a foot. Burn for a burn, wound for a wound, bruise for a bruise.” (Shemot 21:24-25) What a cruel and barbaric people were the original Jewish civilization. This form of justice, meting out  punishments like these sounds very much like what we hear today about the implementation of Sharia law in some places ruled by Islamic clergy. Some historians have argued that these verses of the Torah are a relic of an older code of law, say Hammurabi’s, that were yet to evolve over time. I cringe whenever anyone, Jew, or non-Jew, speaks of the Old Testament, our Torah, in either of these ways.

In truth, these characterizations of the Torah and Judaism are false. Judaism was not barbaric at its inception nor at any time thereafter; nor did Judaism’s philosophy, morality or fundamental legal system evolve. Over time, of course,  various judicial rulings took place and were recorded stemming from contemporary issues that presented themselves to Jewish communities over our 3000 years of its existence. There was never a time that we did not know exactly how to perform a mitzvah, including how to administer proper justice in cases of bodily injury.  It would be the height of injustice for God to command us to do or refrain from some activity, not fully explain what the command is, and then proceed to reward or punish our behavior for complying or not complying with His command.

Returning to our portion, Mishpatim, we find that in fact the Torah states, Exodus 24: 3-4 Moshe first told the laws (explained the laws), gave the Oral Law to the nation, and then he wrote them down. Rav Shimshon Rafael Hirsch, of blessed memory, a giant in Torah scholarship who lived in the 1800’s, explained the relationship of the Oral Law to the Written Law with the following analogy: “The Oral Law is to the Written Law (the Chumash or Five Books of Moses) as a full lecture is to a student’s notes.”

Consider, for example the command found in Vayikra, 23:42 “You shall dwell in booths for seven days, every native in Israel shall dwell in booths.” To the student who heard the complete lecture, his short notes are enough for him to remember all the points made by the speaker. But to someone not in attendance, the written notes will often be incomprehensible or misleading. Many questions will arise such as: what is a booth? Which seven days do you dwell in a booth? Who is obligated to dwell in this booth? Is the command only in the day or at night as well? The one who wrote the notes will have to explain them to the person now reading and trying to figure out what they mean.

In other words, the Written Law was never written with the intention that it is conveying the complete understanding of the mitzvah. There was, primarily, an Oral Law which presents the true and complete picture for every one of God’s commands. And as mentioned above, this complete Oral Law, in fact, preceded the Written Law. This fundamental principle is crucial to having a correct notion regarding Judaism’s tenants as well as having a proper understanding of any part of the Written Law, the Torah.  Internalizing just this one idea goes a long way in removing many of the misconceptions launched by Judaism’s detractors.

Now the verse “an eye for an eye” must be reexamined considering the above. All the laws of the Torah are defined and elucidated by the Oral Law which Hashem gave to Moshe at Sinai. They in turn have been transmitted to the leading Torah scholars of every generation up to the present day. The Talmud Baba Kamma, 84a-84b, makes clear that these verses were never taken literally. Here the Talmud also makes clear that a careful reading of the very written text will lead any reader to conclude these verses are talking about a monetary payment for personal injury.

 According to the Oral Law, there was never a court in Jewish history that extracted “an eye for an eye” as punishment or compensation.  In his Mishnah Torah, the Rambam states in the Laws of Personal Injury and Damage, 1:6, “Our forefathers witnessed and ruled an “eye for an eye” means a monetary payment.  Why does the Rambam say, “Our forefathers witnessed?”

Rabbi Joseph Soloveitchik, of blessed memory, explained that certain verses in the Torah, over all our generations, have been uniformly interpreted in a specific way. The interpretation was “witnessed.” In these cases, such interpretations have the veracity of the Written Law (as though it was explicitly written). A verse such as “pri etz hadar,” “the fruit of goodly trees,” has always meant an Etrog. The traditional interpretation is ironclad and is not open to alternative explanations. To engage in another interpretation is heresy. (Neuwirth Edition: Chumash Shemot with Commentary by Rav Soloveitchik, p 193.)

The Talmud Baba Kamma, Chapter 8, “החובל,” “The One Who Causes Injury,”  turns its attention to an analysis of how the court makes the proper monetary evaluation of a damaged limb or organ. Under discussion, as well, are the ways the Jewish court assesses compensation for pain, unemployment, medical expenses, and embarrassment that may also occur to the injured party. Not only are Torah law and Judaism not barbaric, they are light years ahead of all other civilizations in their just, ethical and moral treatment of all people. (Ex: Shemot 22:20-21 and 23: 6-11) The notion that Judaism and its legal system ever maintained or exacted the taking of an actual “limb for a limb” is simply fallacious. The purposeful perpetuation of this notion is tantamount to malicious slander by those who utter it.

Why then did the Torah use this expression if it really meant monetary compensation? Just state the law clearly and directly. Again, Rabbi  Soloveitchik, offered the following insightful explanation. The Torah, he explains, is concerned about justice. Absolute justice is based on the principle of ” “מדה כנגד מדה , “measure for measure.” Therefore, absolute justice would demand that the one who caused another to lose a limb or organ be made to experience the same pain he inflicted. This experience will cause the person to feel what the victim is going through and repent fully for his cruel act. On the highest level of justice, man needs to suffer an “eye for an eye.” However, Hashem in His mercy, recognized the inability of people to sustain such a punishment. God therefore allowed for a substitute through a monetary compensation. However, when making the payment to the injured party, the criminal should think to himself that he truly deserves to lose his limb, but the restitution of money is an expression of God’s divine mercy. Hopefully, now this person will act mercifully towards all of God’s creatures. (מפנמי הרב, pp. 379-380)

Thus, we find in this week’s Torah portion the coming together of two fundamental principles underlying all of Judaism. One, Judaism originates from a vast structure of Oral Law. The Written Law is merely the tip of the iceberg. Two, the compassion and mercy of Hashem is at the heart of the legal and ethical system of Judaism. The coupling of these two ideas makes the entire system of Judaism the most civilized and humane of any society. Contrary to the world’s perception, Judaism is a religion of compassion that results from the highest level of justice and truth. After all, it is the manifestation of God’s word to us through His Torah. It is accessible to all; but to see it, you must take the time to study His word in full.

Shabbat Shalom,

Rabbi Robert Kaplan