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From: "Yeshivat Har Etzion's
Israel Koschitzky Virtual Beit
Midrash"
To: yhe-intparsha@vbm-torah.org
Subject: INTPARSHA -18: Parashat Mishpatim
Yeshivat
Har Etzion
Israel Koschitzky Virtual
Beit Midrash
***************************************
Introduction
to Parashat HaShavua
Parashat Mishpatim - 'An Eye for an
Eye'
By
Michael Hattin
Introduction
The Ramban (13th century, Spain)
introduces his
commentary to the Parasha of Mishpatim with the following
synopsis: "And these are the laws which you shall place
before them" - "the Divine intent was to present the people
with these laws immediately after the Revelation at Sinai.
Recall that the first of the Ten Utterances
concerned
recognition of God and the second prohibited idolatry.
After that theophany had taken place, God reiterated these
ideas: 'you yourselves saw that I spoke to you from heaven'
(Shemot 20:19) parallels the First Utterance of 'I am the
Lord.' 'You shall not fashion gods of silver or
gold'
(Shemot 20:20) recalls the Second Utterance that prohibited
idolatry. These laws about to now be presented continue the
theme of 'Thou shall not covet.' For if a
person is
ignorant concerning the laws of the house, the field, or
other forms of property, he might imagine to himself that
they are his, and then covet them and
seize them.
Therefore, God commanded Moshe to place these laws before
the people, so that they will behave with uprightness and
not desire that which does not belong to them. Similarly in
the Midsrash Rabba it is stated: 'The entire Torah
is
predicated on justice, and therefore God presented these
laws after the Revelation of the Ten Utterances.' Thus,
these laws that follow speak of the prohibition of idolatry,
of the obligation to honor one's parents, and of
the
prohibition of murder and adultery, all of which
are
mentioned in the Ten Utterances."
Laws form the foundation of every functioning society.
The rule of law ensures that individuals respect
each
other's person and property, and behave responsibly when in
a social context. When mishap or damage does occur, whether
by premeditation, foreseeable negligence, or accident, laws
regulate restitution and impose punishment as appropriate.
The Ten Utterances are universally regarded as fundamental
principles and yet, the Ramban informs us, they
are
insufficient in and of themselves to create a moral and law-abiding society. "Thou shall not covet" is an upright and
virtuous injunction, a majestic vision expressed with a
remarkable economy of words, but in the absence of practical
and detailed guidelines that spell out its parameters, it
remains an exalted slogan with little hope of realization.
Thus, fast on the heels of the Ten Guiding
Principles
presented in last week's Parasha, the Torah presents the Law
Code of Parashat Mishpatim, a series of statutes that forms
its natural continuation.
Civil Law and Ritual Observance
Considering the Ten Utterances or
the Parasha of
Mishpatim, we at once notice a feature common to both that
is striking as well as unique. Civil law on the one hand,
and ritual law or exhortation to religious excellence on the
other, are presented not as disparate and
discrete
disciplines but as organically related parts of a complete
system. Thus, in the case of the Ten Utterances, laws of
idolatry or Sabbath observance are juxtaposed with laws of
murder or theft. In the much lengthier
Parasha of
Mishpatim, laws of slavery, torts or loans are presented in
proximity to laws of forbidden foods, sacrifices,
or
holidays. This type of commingling is unparalleled in any
other 'code' of law that has come down to us from antiquity.
All of the ancient Near-Eastern compilations of law, for
example, treat civil law and ritual law as two completely
distinct frameworks that are invariably presented
as
independent literary works.
The implication of this fact is staggering,
for it
suggests that the ultimate motive for the observance of
rational and reasonable civil laws is synonymous with the
driving force that enjoins observance of the ritual and
religious injunctions: the authority of a Transcendent God.
There is therefore no intrinsic difference between both
realms for they are complementary halves of a complete
whole. The desire to bifurcate social law from ritual, to
swear allegiance to a 'Prophetic Judaism' while denigrating
or downgrading ritual observance, is founded upon a faulty
premise that paradoxically is apt to remove God from the
equation.
We tend to accept civil law as more
valuable and
meaningful because it makes sense. Ritual, on the other
hand, often defies easy and straightforward rational enquiry
and therefore we discard it
with greater ease.
Fundamentally, however, the structure of our
Parasha
demonstrates that the legitimacy of both is predicated upon
the very same premise. The religious core that animates
sincere ritual observance also constitutes the soul of an
impassioned crusade for social justice. Conversely, if
social laws are meaningful only because their value is
rational and obvious and not because they are the commands
of an absolute Deity, then such laws can never be
the
vehicles for the spiritual transformation of the human
being. Put differently, the same Hebrew prophets who were
filled with burning indignation for the plight of the widow,
orphan and stranger, also inveighed against idolatry and the
desecration of the Shabbat. The ideal student of the Torah
is therefore meticulous in his/her relationship with other
people and their property, as well as being scrupulous with
respect to the ritual laws.
The Literal Reading
Let us keep this critical binary relationship between
civil law and ritual observance in mind as we examine one of
the most misunderstood and maligned laws of this Parasha.
A literal and superficial reading of its contents has served
as a pretext to accuse the Torah of primitive vengefulness,
and the God of the Hebrews of vindictiveness. The issue of
which we speak is presented in a section that relates the
case of injury inflicted upon an innocent bystander to a
violent dispute: "If two men strive together, and strike a
pregnant women who consequently miscarries, but no other
tragedy ensues, then they shall be fined according to the
claim filed by the husband in court. But if her tragic
death follows, then you shall give one life for another. An
eye for an eye, a tooth for a tooth, a hand for a hand and a
foot for a foot. A burn for a burn, a wound for a wound,
and a bruise for a bruise."
This passage presents many difficulties of
exegesis,
but the most glaring one concerns the apparent
legal
sanction if not outright support for the so-called 'lex
talionis' or law of retaliation. That is, taken literally,
the verses seem to indicate that if one inflicts an injury
upon another, the Torah mandates that a similar injury be
inflicted upon the perpetrator. This form of 'justice'
strikes us as barbaric and primitive, appealing to the baser
passions of the victim and society, rather than attempting
to inculcate a higher degree of civilized behavior.
The Traditional Reading - The Rational Argument
It is essential to bear in mind that the
unanimous
consensus of the early sources such as the Mishna, Midrashei
Halakha, and Talmud, as well as that of
the later
commentaries, is that the passage in question is not to be
understood literally. There is not a single source
or
opinion to be found in the vast corpus of traditional Jewish
writings, early or late, halakhic or homiletic, that argues
for a literal application of the principle.
For the
purposes of simplicity, we shall quote at length from the
words of Rabbi Avraham Ibn Ezra (12th century, Spain), but
much of his evidence is in fact based upon the earlier
sources. In general, it may be said that the rejection of a
literal interpretation is predicated upon rational and
ethical considerations, but can also be
convincingly
supported by recourse to textual analysis and investigation
of parallel sources.
Ibn Ezra writes:
"'An eye for an eye' - Rabbi Saadiah (10th
century, Babylon) explained that we cannot explain this
verse literally, for if a man struck the eye of his
fellow and caused a vision loss equal to 1/3, how will it be possible to inflict precisely the same injury on
the perpetrator, witneither excess nor deficiency?
The wound and the bruise present an even more
difficult situation, for if the initial injury was
sustained close to a vital organ, perhaps the retaliatory strike will result in the death of the perpetrator.
Reason does not tolerate a literal interpretation
of this verse!"
Here, Ibn Ezra maintains that reason argues against a
literal understanding because it is not possible to apply
the principle of retaliation with precision. This point is
particularly cogent if we bear in mind that the underlying
justification for retaliation in kind is the concept of
equivalence. In other words, if the victim of an attack
sustained an injury, it is only right that the aggressor
should suffer the same injury. This represents a rough but
satisfying form of frontier justice in which the assailant
gets his just desserts. But, says Ibn Ezra, the very desire
to impose equality before the law that serves as the basic
justification for 'an eye for an eye' contests the literal
interpretation, for the exact same injury cannot, in all
probability, be inflicted upon the perpetrator.
The Traditional Reading - The Textual Argument
The troublesome phrase in question is of course
"and
you shall give a soul for a soul. An eye for an eye..." In
the original Hebrew, the words read: "VeNatata nefesh tachat
nafesh. Ayin tachat ayin..." What is the
meaning of
'tachat'? Often, this word carries a spatial connotation
and means 'under,' but here and in many other contexts it
implies 'in place of.' Thus, we are told that
Avraham
offered a ram 'tachat' his son Yitzchak (Bereishit 22:13)
which is to say 'in place of,' or that Yaacov rebukes his
wife Rachel by exclaiming "am I then 'tachat' God who has
withheld offspring from you?" (Bereishit 30:2). Rendering
the phrase as 'a soul in place of a soul, and an eye in
place of an eye' does not appear to obviate the difficulty.
An investigation of the parallel passage in the Book of
VaYikra in Parashat Emor, however, begins to shed light on
the textual aspect of the issue: "A man who strikes and
kills his fellow shall surely be put to death. One who
strikes and kills an animal
shall make payment
('yeshalmenah'), a soul for a soul. A man who inflicts a
disfigurement on his fellow, as he did so shall it be done
to him. A break for a break, an eye for an eye, a tooth for
a tooth, as a man inflicts a disfigurement on his fellow so
shall it be given upon him. One who strikes and kills an
animal shall pay for it, and one who strikes and kills a man
shall die..." (VaYikra 24:17-23). The
verses here
emphatically contrast the case of killing a man with the
case of killing an animal. For the
former, capital
punishment is enjoined, while for the latter, payment can be
made. In language which echoes that of our Parasha, the
Torah again appears to mandate retaliation for the bodily
injury of another person. We are once more left to ponder
the significance of 'an eye for an eye, and a tooth for a
tooth.'
This time, however, the text of the Torah
interprets
itself: "One who strikes and kills an animal shall make
payment, a soul for a soul." The indication clearly is that
one who kills his fellow's animal must pay for it and make
restitution, for the verb 'yeshalmenah' comes from the root
'ShaLeM' meaning 'complete' or 'whole,' and
therefore
'restitution' or 'payment' that can replace a loss and
thereby restore the victim to a complete state. Yet the
Torah unambiguously describes this arrangement as 'a soul
for (in place of) a soul'! In other words, the means of
compensating the injured party for loss of his killed animal
is not by killing the animal of the aggressor, but rather by
necessitating that aggressor to make payment. Nevertheless,
the Torah calls this monetary settlement 'a soul for a
soul.'
At first glance, adopting such a reading
also with
respect to injury of another human being appears to be
necessarily contradicted by the expression "a man
who
inflicts a disfigurement on his fellow, as he did (ka'asher
asah) so shall it be done to him (kain yaiaseh
lo)."
Shimshon's use of the same idiom to describe his response to
Philistine aggression, however, demonstrates that it need
not imply exact, equivalent reciprocity of injury. After
the Philistines had burned his Timnite wife and father-in-law, Shimshon strikes back and kills many of them. The
tribesmen of Yehuda among whom he seeks refuge are reluctant
to shelter him, for they fear the vengeance of the ruling
Philistines. "You are fully aware that the Philistines rule
over us," they exclaim, "what have you
done to us?"
Shimshon responds: "As they have done to me (ka'asher asu
li), so have I done to them (Kain asiti lahem)!" (See The
Book of Shoftim/Judges Chapter 14-15). Now surely, Shimshon
did not mean to imply that he had inflicted the very same
bodily injuries on the Philistines that they had done to
him, for they had burned his wife and father-in-law and his
response was warfare. Rather, what he meant was that he had
'repaid' them in kind for their act of cruelty by besting
them in battle. In other words, the expression employed in
the passage from Parashat Emor can also be taken to mean
'repayment or compensation' and not 'equivalent retaliatory
injury.'
Reconciling the Literal Reading with the
Traditional
Interpretation
We are now able to provide a plausible explanation for
this difficult expression. The Torah could very well be
interpreted to mean that when a person strikes and injures
the eye or tooth of his fellow, the appropriate and just
judicial response is the imposition of a monetary forfeiture
on the aggressor in accordance with the 'value' of the
injured organ or limb. This, in fact, is the position that
is maintained by the traditional sources themselves. Ibn
Ezra, though, remains skeptical of the rational and textual
arguments, for in the end he concludes:
"The general
operative principle is that we are not able to offer a
complete explanation for the commandments of the Torah
without recourse to the Oral Tradition transmitted by our
Sages. Just as we received the Written Torah from
our
ancestors, so have we received the Oral Tradition, and both
are equally authoritative." Thus, although
a literal
reading of 'an eye for an eye' is not absolutely refutable
on rational or textual grounds, it is negated by
the
existence of an authentic oral tradition to the contrary.
We are thus left in the somewhat uncomfortable position
of possessing a text which seems to indicate one thing -
retaliation, and a tradition that insists on another -
monetary compensation. Or, to phrase the
conundrum
differently, if the Torah really meant to teach us monetary
compensation, then why did it employ in its written form an
expression which could easily
be understood
(misinterpreted?) to mean bodily retaliation? Here, the Ibn
Ezra provides an answer that captures the essence of the
Torah's more profound message: "The expression 'an eye for
an eye' means that it would be fitting for the aggressor to
forfeit his own eye, if he refuses to provide 'ransom' in
the form of monetary compensation." What is the meaning of
his words?
Sometimes we fall into the trap of believing that money
can solve all of life's ills. If an object breaks, money
can replace it. If a body ails, money can heal it. If a
soul languishes, money can comfort it. Human productivity
is measured by economic output, human creativity
by
potential market value, human success by monetary worth.
These deep-seated but skewed values are not an invention of
the modern age but have been part of the social landscape
since the concept of capital first seized hold of the human
psyche. The danger that such attitudes engender is that
they can lead to the commercialization of the human being,
and his transformation from a Divinely fashioned unique
personality into a mass-produced standard good or service.
To express the problem in the
terms of Parashat
Mishpatim, we may come to believe that when an injury is
inflicted on another person's property or body, money can
heal the wound, assuage the pain, erase the anguish, and
compensate for the damage. adoption of such an attitude
would be to read 'an eye for an eye' as implying exclusively
monetary compensation. 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, we must understand that monetary compensation is
perhaps the best solution, but that in the
end no
replacement can ever be made for the injury inflicted,
particularly if 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.
Shabbat Shalom
For further study: see the Ibn Ezra's introduction to
the Torah where he develops at length the concept of the
necessity of relying upon an Oral Tradition to explicate the
written text of the Torah. Something as fundamental as the
principals of the Hebrew calendar, essential for regulating
the life of the Jewish nation and for
allowing the
celebration of the days enjoined by Scriptural Law, is not
spelled out by the Written Torah in any way which makes its
practical formulation possible. This example, and many
others like it, indicates that the existence of an authentic
and accurate Oral Tradition is not only an article of faith,
but also a rational imperative.
See also the Rambam (12th century,
Egypt) in his
introduction to the Mishna, where he indicates that there
has never been a divergent tradition that has read 'an eye
for an eye' literally. This makes the traditional Oral
interpretation as unassailable as the 'use of the Etrog on
the Festival of Succot, for since the days of Yehoshua bin
Nun until now, we have not seen a single Jewish community
interpret 'the fruit of a beautiful tree' (VaYikra 23:40) as
indicating any other species!" See also the Rambam in his
Mishneh Torah, Laws of Chovel U'Mazik Chapter 1:1-6 where he
states the matter in similar terms.
I have avoided translating 'Aseret HaDibrot' as
the
'Ten Commandments' and have instead employed the
'Ten
Utterances,' which is more accurate linguistically as well
as thematically. The Torah nowhere refers to these ten
things as 'Aseret HaMitzvot.' Jewish tradition early on
recognized the danger of employing the
term 'Ten
Commandments' to describe these principles, since this has
the inevitable effect of de-emphasizing the significance of
the other mitzvot. See the Talmud in Tractate Berakhot that
discusses the decision to exclude the recitation of the
'Aseret HaDibrot' from the daily liturgy, for
similar
reasons.
YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH
ALON SHEVUT, GUSH ETZION 90433
Copyright (c) 1999 Yeshivat Har Etzion
All Rights Reserved
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