Joel Cohen

The presumption of the Oral Law: Through the Lens of “An Eye For An Eye”

As we approach Shavuot, and prepare to celebrate the giving of the Torah, we may want to ask ourselves, did God really mean what He said? For example, did He literally mean “an eye for an eye” when He spoke to Moses on Mount Sinai?

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Invoking God’s Will – how many of us do it? And for what purpose?

One in four Americans believe it is God who decides who wins the Super Bowl. And Manny Pacquiao announced (wrongly, as it turns out) that God would deliver Floyd Mayweather’s defeat.

Natural disasters? In 2005, the spiritual head of Israel’s Shas Party, Rabbi Ovadiah Yosef, explained Hurricane Katrina as “God’s Will,” enervated by the Kushites of the world who, in Yosef’s mind, don’t study the Torah.

And let us never forget that certain religious leaders shamelessly invoked “God’s judgment” to explain the 9/11 murders. Indeed, perhaps no one sunk lower than Evangelical preacher Jerry Falwell, who blamed the massacre on “pagans, abortionists, feminists, gays and lesbians” and who then, in an arrogant and contemptuous “apology,” actually cited Book of Proverbs 14:23 — interpreting the verse to mean that “living by God’s principles promotes a nation to greatness; violating those principles brings a nation to shame.” And, to make sure we come full circle, there are Muslim terrorist extremists (including some religious scholars) who have likewise interpreted the Will of Allah to rationalize unparalleled atrocities.

Is God a boxing fan? Football, maybe? Does He use weather events to demonstrate to the world that one leader has interpreted Him correctly, while others have not? Put plainly, does He kill the innocent to appease religious leaders’ views of His teachings?

But are these really the right questions? Isn’t there danger, perhaps catastrophic danger, in mortals deciphering God’s true intentions, His true meaning? And perhaps more precarious, what about when men — yes, men even when they are dressed up in the garb of Talmudic genius — choose to tell us precisely how God intended His Law, contained in the Written Scripture, to be interpreted and carried out, when a strong (and maybe stronger) argument can be made that they are no more equipped than the rest of us to tell us what God meant?

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Let’s ask ourselves: what actually happened at that exquisite moment at Sinai when God entrusted Moses with the Law – for example, with “Lex Talionis” (or, in today’s terms, rules of equivalent and retributive justice)? Accepting that God was indeed the author of His Law contained in the Five Books of Moses (and Moses his principal acolyte, stylus of a sort in hand), did God really mean, literally mean, as it is starkly presented there: “life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise”?

Now, if we are wondering why God would choose such a seemingly inhumane means to physically mete out justice, we have to factor into the calculus that God’s choice of equivalent retribution was hardly the first of its sort in the history of the world. Egyptian Pharaohs, who preceded the Written Law by centuries, were quite comfortable with retaliatory, physical punishment. Hammurabi likely penned the first version of “an eye for an eye,” but by his account, the “eye” of the upper class was worth more than that of a slave’s. Maybe God simply approved of the way his “un-chosen” were dispensing justice in their “un-promised” lands, and decided to go along. So, when Moses heard God’s words on the Mountain, perhaps he thought nothing unusual about them and took the words down unhesitatingly — faithful scribe that he was.

Or perhaps God simply intended — for “general deterrence” (to deter everyone from such wrongdoing), for “specific deterrence” (to deter the offending individual), for “retribution” (revenge against the offender) and for “punishment” (no explanation needed) — to tell His chosen people that only the seeming cruelty, yet piercing clarity, of “eye for an eye” justice would suffice to keep the House of Israel on the straight and narrow.

Or, did it play out differently? Perhaps when he heard those words from the Voice of God, Moses took a noto bene yellow post-it out of his pocket and gummed it next to the terrifying words he had written down – “OMG,” on his lips, “How will I ever tell them this?” As Moses wrote down those facially hideous phrases – effectively telling all the world that, under My Law, if a man pokes out the eye of his fellow man, the exact same thing is due him – did he gulp and look aghast given that the Words were coming from the “All-Merciful” God he had come to know?

Or maybe God knew he was not to be taken literally. Did God, concerned that Moses would lose faith upon hearing His Law, immediately temper His horrific words, whispering in Moses’s ear: “What I really mean, Moses, is the compensatory value of an eye. And make sure you pass down the word of what I really meant when you teach it to them. We certainly don’t want the Jewish people (indeed, the whole world) getting the wrong idea after you’re gone, and there is no longer one to ‘interpret’ what I tell you – the Oral Law.”

And if God did explain Himself to Moses immediately, albeit not in the Written Word, how could He not have realized what He was potentially unleashing into the world? That, particularly on an issue of such prodigious import, the chain would inevitably break: that somehow, somewhere through the course of history, people would get it wrong — perhaps misled by an heretic, or a forgetful transmitter, or a rabbi with a discordant agenda or an ignoramus in Torah. Or, more simply, perhaps flawed interpreters, albeit functioning in good faith, would incorrectly “determine” God’s Original Intent — to coin a constitutional philosophy of today – and conclude (or even actually decide) that what is stated so clearly in black and white in the Written Word was exactly what He meant. Namely, an eye for an eye. You poke my eye out, yours gets poked out – no matter the circumstances. Simple, excruciating, direct, unequivocal rough, justice! Really – why wouldn’t He mean what He said?

Yet, that God literally meant “an eye for an eye” became the minority view. Were the Pharisees (or, call them the rabbis) simply the authors of a “new meaning” of what Moses wrote down – calling it the Oral Torah and taking the liberty of soft-peddling God’s true meaning, by telling Israel what God really intended by His Words. Because to leave those words as they appeared in Scripture would be too unsettling for a (by then) more modern civilization to live by, or abide. Yes, they “decided” out of necessity — a “presumption” of sorts, perhaps an arrogance — that the Torah was a “Living Torah,” a document that was intended (by God Himself) to evolve over the course of the millennia. So, while the ostensibly raw barbarity of equivalent retaliation might have made sense at the time of its authorship thousands of years before, it wouldn’t make sense a mere two thousand years ago when the Pharisees/Rabbis began their march down the course of Jewish history.

But, the rabbis needed to figure out what to tell us because, let’s face it, the Written Word contains no remark, or even a clue, to suggest that God intended an “evolving” interpretation of the Law’s meaning. Whatever they really believed deep in their hearts, they decided that they needed to tell us that the Torah wasn’t actually evolving at all; indeed, the rabbis would tell us that the Torah never meant “an eye for an eye”. For them, God, in fact, told Moses all of the Law and its interpretations – some of it simply wasn’t written down because God decided to do it that way “for reasons best known to Him.”

Simple: for reasons best known to Him interpretations of His Laws were not scribed. There was nothing new at all. No evolution. And so the rabbis would say: God instructed Moses during his existential stay atop the Mountain the concept of “compensatory value” along with the rest of the Law, and Moses taught it to Joshua at the foothills of Sinai, and so on and so forth. And miracle of miracles, even though it was handed down orally over the millennia, “we got it right then, and we get it right now!”

So, with their overarching thesis, the Pharisean rabbis who lived at the time of Jesus — he, by the way, disdained them and their didactic interpretations — raised pivotal discord (“machlokes”) with their nemesis, the Sadducees. They took the position — a doctrine that essentially has held sway ever since – that through an almost miraculous transmittal of the Law over the course of time since Sinai, the Law has been a constant. And they chose to call it “the Oral Law” — even though God curiously never directed Moses to use that now time-honored phrase in the Written Scripture. So, perhaps without saying so directly, the rabbis would argue that — in compliance with God’s Written Word — they never changed or added to the Law. They simply transmitted it in a never ending chain.

Thus, the Sadducees, as long as they were still in the game – meaning, before their status as debate partners in the disputation was largely obviated when the Temple was destroyed and the Jews were exiled from Israel — adhered to the basic and simple plain meaning that “an eye for an eye” means just that. And while they became the “losers” in the battle over the proper meaning of the Law, by all accounts they logically seem to have been correct: Why would it not be that God said exactly what He meant, or at least meant for that point in time?

Was it because the Pharisean “winners” seemed more “politically correct,” in today-speak: God never was barbaric in meting out such punishment. Rather, the Pharisees said to themselves: “We can’t live in the world as it exists today where literal ‘eye for an eye’ justice is acceptable.” And, “we don’t want our God to even appear to have ever favored that practice,” even a millennium ago when the protocols of life were different.

Flavius Josephus, the First Century historian who has no religious authoritativeness with the rabbis – in fact, he was viewed in many respects as an heretic for having ostensibly become an apologist for Rome — had a different take on all of this. He reports the Law of Moses concerning“ an eye or an eye” in his seminal work, The Antiquities of the Jews, thus: “A person who injures someone shall undergo the same [injury], being deprived of the same limb of which he deprived the other, unless indeed the injured party is willing to accept money [instead]. For the law permits the victim to establish damages for the incident, unless he wishes to be particularly severe.”

And, it is interesting, indeed, how he comes to that. He tells us that within thirty days before Moses’s death, Moses gave the House of Israel “the laws and the constitution of government written in a book.” Josephus, then, “describe[d] this form of government which was agreeable to the dignity and virtue of Moses…[a]nd we shall add nothing by way of ornament, nor anything besides what Moses left us; only we shall so far innovate, as to digest the several kinds of laws into a regular system; for they were by him [Moses] left in writing as they were accidentally scattered in their delivery, and as he upon inquiry had learned them of God. On which account I have thought it necessary to premise this observation beforehand, lest any of my countrymen should blame me, as having been guilty of an offense herein.”

Isn’t that something? Josephus, an historian, neither a judge nor theologian, creates a half way point in discerning God’s plan – so although neither the Written Word nor the rabbis say this, Josephus articulates perhaps the practice of the day or even before that day, and what would probably make logical sense in almost any generation. Paraphrasing: “If my eye is poked out, other than the benefit of gaining revenge, what real benefit do I get out of poking out that of the offender? Whereas monetary damages might help to alleviate – in some respects, compensate me for — my loss.”

And regardless of who his sources were (assuming he had sources), Josephus removes the brutality of lex talionis from God Himself and places the responsibility on how to proceed on the shoulders of the victim with whom one can easily sympathize, as blood drips from his eye socket. The brutal retaliation of an “eye for an eye” is carried out only if the victim, not the polity, chooses to enforce it. Josephus ostensibly reports history, not God’s Will – but maybe he is a better judge of righteous judgment through the words he says. He doesn’t tell us “what God meant,” the evolution of “what God meant,” or how “what God meant” should be interpreted at a particular time. He simply says, essentially, “this is the law; learn to live with it.” And, by the way, “this is how Moses taught it to the people.”

And maybe what may have been a fiction on Josephus’s part in setting up this seemingly verbatim oration by Moses of “the Law” is far better than to engage in the presumptuousness of human beings — even revered human beings — telling us “what God meant.” This especially when the revered human beings themselves go out of their way to tell us, time and again, that human beings may not be so presumptuous – may not have the “presumption,” as it were — to decipher God’s ways. And that indeed to try to do so would be heretical in the extreme!

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Of course, maybe there was something else altogether at work. Maybe God wanted mankind to work out the law for itself, and for the law to truly be an evolving doctrine: to be “perfect in its generations” (sort of how he thought of Noah). That His Law at Sinai was only intended by Him to be the first draft of what the law should be, and that indeed the law (small “l”) should be different in different generations: an evolving law suitable to its times. Maybe He wanted the views of the Pharisees to be accepted, and those of the Sadducees rejected — but over time. Maybe He wanted, or still wants, the views of the Pharisees to be rejected when their views no longer make no sense.

And if there aren’t enough questions already on the table, is there a presumptuousness (adj., presumption), too, indeed, in asking any of this?

About the Author
Joel Cohen is a white-collar criminal defense lawyer at Petrillo, Klein & Boxer in New York and previously a prosecutor. He speaks and writes on law, ethics and policy (NY Law Journal, The Hill and Law & Crime). He teaches a course on "How Judges Decide" at Fordham Law School and Cardozo Law School. He has published “Truth Be Veiled,” “Blindfolds Off: Judges on How They Decide” and his latest book, "I Swear: The Meaning of an Oath," as well as works of Biblical fiction including “Moses: A Memoir.” The opinions expressed in this article are not necessarily those of the Petrillo, Klein & Boxer firm or its lawyers.
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