An Eye for an Eye: If It Means Money, Why Not Say So?
As most people know, the halakhic response (oral Torah) to assault or any other Tort (civil crime) is monetary compensation, even though the Written Torah seems to call for “an eye for an eye.”
The Oral Torah is what we follow in Rabbinic Judaism, we believe it the same as the Written Torah; the Rambam (one of the greatest commentators) presents it as an example of Halakhah Le-Moshe Mi Sinai, an opinion that must go all the way back to Har Sinai, as there has never been any machloket (debate) whatsoever that this is the Halakhah.
Why then does the Written Torah not just state the Halakhah explicitly: if you hurt someone, you’ll have to pay damages? If “an eye for an eye” is never put into practice, why does the Written Torah make it look as if it is? In other words, why did G-d arrange it so that the Written Torah and Oral Torah here send different messages?
There are two classical answers to this question. The first, classic approach is that “an eye for an eye” would theoretically be justice for an attacker, a punishment which he deserves to receive. The second, radical approach is that “an eye for an eye” serves as a deterrent for an attacker, which needs to stay on the books just in case.
The first approach, that the Torah is describing what an attacker deserves, is mentioned briefly by the Rambam, and elaborated upon by many others. Among them are Rav Soloveitchik who presents the approach in his characteristic way. Rav Soloveitchik was once interviewed by The New York Times, and in the course of the interview he explained “an eye for an eye” as an example of dialectical tension:
“You know the saying about an eye for an eye. The Bible states that this is what a man deserves when he has taken another man’s sight. It is the full measure of justice. But we also know that no human being can implement such strict justice. In practical terms, it means that you make the man pay compensation. . . .
Judaism is never afraid of contradictions. . . . In many cases, such as the “eye for an eye” situation, there is a contradiction between the demands of love and justice. (The medieval man gave truth – or whatever he thought to be the truth – precedence over lovingkindness, and so do the Communists today.)
Judaism is basically very tolerant, and usually comes down on the side of lovingkindness. But it acknowledges that full reconciliation of the two is possible only in God. He is the coincidence of opposites.”
Now it may indeed be the case that financial restitution is to be preferred to retaliation, and that surely needs no rational explanation. At the same time, however . . . no replacement can ever be made for the injury inflicted, particularly if the loss of a limb or organ is involved. The explanation provided by the Oral Tradition makes it clear that payment for damage may absolve one of secular and social culpability. The Written Torah, however, couches the concept of monetary compensation in terms of “an eye for an eye.” This striking phrase is to indicate that in the much more exalted moral and ethical dimension, the perpetrator must feel for the injured party as if they had to forfeit their own eye, as if financial restitution was an imperfect and incomplete form of ransom for their crime, as if no amount of money could ever replace what was lost; for that is indeed the case.
To sum up this first approach, the Oral Torah tells the rabbis of a beit din that they should instruct an attacker to pay damages. The Written Torah, in contrast, tells the attacker that he deserves much worse
In fact, however, the written Torah in another place approves of monetary compensation. In Shmoat (Exodus) 21:19 G-d says that “If he rises again and walks around upon his staff, then shall he that smote him be quit: only he shall pay for the loss of his time and shall cause him to be thoroughly healed.”
So the Bible compromised in its writing for a variety of good reasons. If the Bible had written the sentence as “One who blinds another person must pay money as a punishment,” cruelty could have increased. Powerful, wealthy people would have blinded the poor with impunity, happily paying the damages from their deep pockets. Isn’t this what happens in many court cases (the cigarette court cases come to mind). For that reason, the court developed the idea of Punitive damages in order to make the Rich really try to pay for their damages. The Bible presented a sentence that would apply across the board to both rich and poor: “If someone blinds another person and the like, what he did will be done to him!”
Now everyone who is poor and downtrodden could be assured of keeping his body intact. After all, a rich person has lots of money, but not lots of eyes and arms. He will be afraid of hurting anyone, because if he casually disables some poor child, he too might end up disabled for life. The Torah doesn’t distinguish between the super-rich and the super-poor; the law is the same.
Here the Torah made a fence to protect the poor from the powerful and tyrannical. In contrast, if it happens that one person blinds another, whether, in a fight or an accident, God gave Moshe the rule in the holy Torah that the person should pay money. With this, the Torah fixed two things: [the Written Torah] set up a fence against the corrupt and powerful, and the Oral Torah made it unlikely that anyone will seek revenge. A beit din can instruct that money must be paid, assuming it is a place where there is no concern that the powerful will get out of hand.
But if it is a place where there is such a concern, then as a fence the Torah law is that the beit din should apply what is written [and do “an eye for an eye” literally]!
To sum up this second approach, it would be disastrous if people took advantage of the rule of monetary compensation, attacking others with little consequence. The Oral Torah tells the rabbis of a beit din that normally, they should instruct an attacker to pay damages. The Written Torah, in contrast, tells them that when necessary, they should put “an eye for an eye” into practice. That’s pretty radical.
According to both approaches, the message of the Torah is a combination of the Written Torah and Oral Torah, “the Written and Oral Torah are one. They cannot exist without each other, like body and soul.”
This concept that an “eye for an eye” doesn’t mean what it says is one of the first arguments that Orthodoxy raises to prove that we must follow Rabbinic Judaism. Just reading the “Bible” does not let us understand G-d’s rules.
This Shabbat I learned another possible interpretation of the need to proclaim in the written Torah “an Eye for an Eye”
Everyone knows that we want Life to be fair. However, is it? When one loses an eye or a limb through some one else’s negligence, will taking their eye or limb bring mine back? Of course not. G-d doesn’t make life fair but he makes it as fair as possible based on life the way it is.
Ultimately everyone dies. Is it fair? No. Is it fair that our holy people died in the Holocaust? No. Life isn’t fair and maybe G-d should have said that in the bible, but he doesn’t. He tells us that life isn’t fair, but it is all that we have and enjoy it. Hence this verse in the Bible is really a preclude to the Purim Story coming us soon! Enjoy life and Purim, fair or not.
Love Yehuda Lave