Eye for an Eye (Analysis of text – Part 1)

Introduction

The Torah (Exodus 21:24) states for compensation after an injury, “(One should pay) an eye for an eye, a tooth for a tooth, a hand for a hand, and a foot for a foot.” At a literal level this verse implies physical retribution for an injury which makes Torah law both brutal and vindictive. However since the ways of the Torah are peaceful (Proverbs 3:17), “Its (the Torah’s) ways are ways of pleasantness, and all its paths are peace” this cannot be the meaning of the verse.

Rather the oral law explains that compensations for injury is only monetary as Maimonides writes (Laws of Damages by a Person 1:6), “Monetary compensation for injury is explicitly mentioned in the oral tradition transmitted by Moses from Mount Sinai and is regarded as biblical. This is what our ancestors ruled in the court of Joshua, Samuel of Ramah, and in every single Jewish court that has functioned from the days of Moses our teacher until the present age.”

Maimonides (ibid. 1:3) explains that the intent of “Eye for an eye” is that the assailant should realize that he deserves to be injured in the same manner as the victim. However the oral law rules that he should make financial restitution.

Due to the length of this topic the author has divided this article into the following parts:

1. Scripture.
2. Talmud.
3. Shulchan Aruch.
4. Appendices.

Proofs

The Talmud (Bava Kamma 83b-84a) provides several proofs that the expression “eye for an eye” is not literal based upon comparing different verses in the Torah or through logic. For the sake of brevity the author will provide a sampling as follows:

• Verses (comparison to capital punishment) – The Torah states (Numbers 34:31-32) that one cannot pay a ransom to exonerate a murderer whether from capital punishment if premeditated or exile if accidental. The Talmud (ibid.) infers that for an injury one must pay compensation and be exempt from additional punishment. The verses follow, “You shall not accept ransom for the life of a murderer, who is guilty of death, for he shall be put to death (by a duly authorized court and with witnesses who saw the crime and warned the assailant). You shall not accept ransom for one who has fled to his city of refuge, to allow him to return to live in the land, before the high priest has died.” In addition to the literal meaning of the verse the Talmud (ibid.) infers from the expression, “life of a murderer” which appears superfluous that a murder cannot pay ransom and by inference an assailant must pay compensation.
• Verses (comparison of verses referring to injury) – The Talmud (ibid. 84b) infers from verses in Leviticus 24:19-20 that an assailant must pay compensation. In the former verse the Torah uses the expression “Done to him” and in the latter verses the Torah writes, “Given to him”. The former verse follows, “A man who inflicts an injury upon his fellow just as he did so shall it be done to him”, implying a literal interpretation. However the next verse states, “Just as he inflicted an injury upon a person, so shall it be given to him“, implying a monetary payment because money is given from hand to hand.
  • Logic – The Talmud (ibid.) also questions the fairness of an eye for an eye. For example if the assailant were blind or severely visually impaired what would be gained by taking out his eye? Furthermore the Talmud (ibid.) notes the risks of inflicting damage on the assailant could lead to excessive pain or even death depending upon strength of the assailant. The Torah warns against taking revenge or bearing a grudge (Leviticus 19:18). Rather one must show love as the verse states, “You shall neither take revenge nor bear a grudge against … your people. You shall love your fellow as yourself. I am Hashem (who created all peoples).” However the victim may seek legal recourse for damages as explained above. Even in the case of lashes, administered by a duly authorized court with a trial and witnesses, the risk is reduced because the court can halt the lashes if the accused becomes faint.

  The Aruch Hashulchan (Chosen Mishpat 420) adds the following proofs from verses in scripture:

  • Similar payments (ibid. 5) – Since the Torah (Exodus 21:19) specifies monetary payments for medical treatment and temporary loss of employment it is reasonable to assume that compensation for the other damages is also monetary.
  • Similar laws (Ibid. 6) – If an owner strikes his Canaanite servant and damages his eye or knock out his tooth then the servant goes free and the assailant does not suffer bodily damage. The freedom of the servant is equivalent to monetary compensation because a servant typically earns his freedom trough a payment to his master (Kiddushin 22b).
  • Pleasantness (ibid. 7) – As mentioned above, the penalty for injury cannot be literal (i.e. eye for an eye) because the ways of Torah are pleasant and not vindictive based upon Proverbs 3:17. The verse follows, “Its (the Torah’s) ways are ways of pleasantness, and all its paths are peace “.
    

    Five Categories

  • The Talmud (Bava Kamma 83b) lists the different categories of damage which the assailant must pay after an assessment by the court. The following table cites these categories in the order of the Mishna in Hebrew, English, with a supporting verse from the Torah.
    

    Hebrew	English	Verse
    נזק	Permanent damage	Exodus 21:24
    צער	Pain	ibid. 25
    רפוי	Medical treatment	ibid. 19
    שבת	Temporary loss of employment	ibid. 19
    בשת	Embarrassment	Deuteronomy  25:11

     

    In the continuation of the article the author will discuss each of these categories in detail quoting relevant verses from scripture, continuing with the interpretation of the Talmud, and codification of the Halacha by Maimonides and Shulchan Aruch. In addition to the development of the Halacha the author will show both the depth and fairness of Halacha taking into account the suffering of the injured party and the extent of the liability of the assailant.

    Permanent Damage

    Although the Torah (Exodus 21:24) writes, “An eye for an eye, a tooth for a tooth, a hand for a hand, and a foot for a foot” the method of payment is not specified.

    Pain 

    The Torah (Exodus 21:25), writes, “A burn (כויה) for a burn, a wound (פצע) for a wound, a bruise (חבורה) for a bruise”, meaning that the assailant must compensate the victim for pain he endured. If there is loss of limb the assailant must also pay for permanent damage. Rashi (ibid.) explains some of these injuries based upon other verses in scripture as:

    • Burn – based upon Leviticus 13:24 where a skin affliction develops after a burn.
    • Wound – a wound that bleeds.
    • Bruise – a blow in which blood collects below the surface of the skin resulting in a patch of red skin. The word חבורה is similar to that of Jeremiah 13:23 “Can a leopard change its spots (חברברתיו)?”

    Medical Treatment

    The Torah (Exodus 21:19) cites payment for medical care after a quarrel. The verse follows, “If he gets up and walks about (after the quarrel) … the assailant shall be cleared (from murder). Rather he shall pay for temporary unemployment and medical care.”

    Temporary Loss of Employment

    The assailant must also compensate the victim for temporary loss of employment until recovery as cited in the above verse.

    Embarrassment

    The assailant must also compensate the victim for public embarrassment he suffered based upon Deuteronomy 25:11-12. The verses follow, “If two men are fighting and the wife of one of them approaches to rescue her husband from his assailant and stretches out her hand and grabs hold of his private parts. You (court) shall cut off her hand.” The Talmud interprets the “cutting of the hands” as a monetary payment for embarrassment.