An eye for an eye?

There is a long history of criticism against the Jewish people — in fact against the God of the Jewish people and His law — that is rooted in this week’s Torah reading. It is, in truth, a misreading; and that contains its own mystery.

“An eye for an eye”, prescribes the Torah (Ex. 21:24), and the literal rendition of that consequence, labeled “Lex Talionis” in Latin, became the symbol of “harsh Old Testament justice,” that called for being replaced by the compassionate forgiveness of Christianity. Taken as reflective of a brutal vengeance, the verse led Gandhi (allegedly) to proclaim “an eye for an eye leaves everyone blind”.

And yet, all of this is premised on a mistake: no such retribution exists in Jewish law. The Talmud (Bava Kama 83b) teaches the intent of the verse: a monetary assessment must be made as to the value of the eye, and compensation paid accordingly. This interpretation is apparently not due to any particularity in the verse’s phrasing, such that any Talmudic sage could have come to a different conclusion. Rather, as Maimonides (Hilkhot Chovel U’Mazik 1:6) notes, the tradition direct from Sinai teaches the meaning of the Torah’s intent.

Nonetheless, the Torah Temimah notes, there is a tool available for the scholar to anticipate the interpretation: the rule that the Torah’s “ways are ways of pleasantness” (Prov. 3:17) is indication enough that the law should be understood in a fashion that would not be simply punitive without any actual benefit to the victim.

Given all of the above, the question presents itself: given that verse is not meant to be taken literally, and the literal read has brought so much vituperation upon the Torah, why indeed is the language chosen to allow for such misinterpretation?

One approach can be found in the commentary of Nachmanides, citing Ibn Ezra. In truth, the assailant, having caused his fellow to be blinded, does indeed deserve to be blinded himself. Nonetheless, the Torah instructs that the path of justice and decency is to collect monetary compensation from him that will in some small measure address the suffering of the victim. Still, the language of the verse remains “an eye for an eye” to convey the theoretical punishment the offender actually deserves.

Rav Soloveitchik added another important observation. Had the Torah phrased the consequences for vicious injuries inflicted upon others in monetary terms, the impression that would have been created is that the crime can be “bought“ and permitted to one who is willing to absorb the cost. This is evocative of a principle of behavioral economics, detailed in a paper by Uri Gneezy and Aldo Rustichini and widely publicized by the authors of the book Freakonomics. The case discussed involved a daycare in Haifa that was frustrated by parents arriving late to pick up their children. As a deterrent, they imposed a small fine for lateness. The result quickly became clear: late pick ups increased, as the monetary payment removed the deterrent of guilt and gave the impression to the parents that they had earned the right to come later due to their providing of compensation. Here as well, the risk exists that a focus on the compensation would create the impression that it legitimates the original action. Nothing could be farther from the truth; the assault remains despicable, even as a monetary penalty is assessed towards restitution.

At this point in history, the Jewish people are once again accused of brutality; in some cases, the allegation is that the people of Israel are “imitating the brutality of their enemies“. This is a terrible slander; nothing the Israeli people have done or would wish to do in defense of their nation would approach the savagery and evil that has been inflicted upon them over these past 16 months. Quite the opposite; following the tradition of the written and oral Torah, the fate that the villains truly deserve is being converted by the victims to a path conducive to justice, defense, and deterrence rather than brutal, indiscriminate vengeance. At the same time, consistent with Rav Soloveitchik’s approach, this path must not be misinterpreted as a settling of the scores that alleviates the guilt of the offenders; the moral condemnation of their actions must persist, with the knowledge that only God Himself can and will deliver what is truly deserved. So-called “Old Testament justice” is nothing to be ashamed of; in its true form, the exquisite balance of its partnership between the divine and the human is what this world needs, now more than ever.