“‘An Eye for an Eye’ in Jewish Law”
(updated and revised from Mishpatim 5762-2002)

by, Rabbi Ephraim Z. Buchwald

In this week’s parasha, parashat Mishpatim, the Torah introduces the fundamental legal system of Israel. Both, criminal and civil laws are recorded, and in great number. In fact, this week’s parasha is the fifth most numerous parasha of laws in our Torah, containing 53 of the 613 mitzvot enumerated in the Torah.

Because of the antiquity of the Torah, we would expect to find many ancient laws that appear to be out of step with contemporary values. In the past, we have tried to explain many of these seemingly antiquated laws and show that they are indeed relevant to, and often ahead of, contemporary values. But, few passages in the Torah raise more eyebrows and engender greater consternation than the law of “retaliation,” expressed in Exodus 21:24-25: עַיִן תַּחַת עַיִן, שֵׁן תַּחַת שֵׁן, יָד תַּחַת יָד, רֶגֶל תַּחַת רָגֶל. כְּוִיָּה תַּחַת כְּוִיָּה, פֶּצַע תַּחַת פָּצַע, חַבּוּרָה תַּחַת חַבּוּרָה , An eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot, burning for burning, wound for wound, a strike for a strike. These ancient laws are known to Biblical scholars as “Lex Talionus,” which means the “Laws of Retaliation.”

Aside from the seeming cruelty and inhumanity of these laws, the striking parallel between the language of the Torah and the language found in other ancient Near-Eastern documents, such as the Code of Hammurabi, often result in all these laws being lumped together as one ancient chulent, resulting in them being regarded as a stew of primitiveness and barbarism.

An additional reason for the negativity, is that in the Middle Ages, Christian courts and Christian kings actually invoked the statements of the “Old Testament” in order to justify their cruel retributive practices, which were introduced at that time in many European kingdoms.

Despite these strongly-worded Torah passages, no case of physical retaliation is ever recorded in the Bible or other Jewish texts, the only exception being of course, for murder, where the perpetrator is condemned to lose his life for taking another’s life. The Talmud in Bava Kama 83b & 84a and the Mechilta prove, through cogent analysis, that these biblical expressions can only mean monetary compensation–for an eye, for a hand, for a tooth, etc. Furthermore, there is no record of any Jewish court ever blinding or inflicting physical injury in return for an injury inflicted on a victim.

On the other hand, the laws of the ancient Near East clearly indicate that physical retaliation was common practice in those societies. Some examples from the Hammurabi Code of ancient Babylonia : If a son has struck his father, they shall cut off his hand. If a citizen has destroyed the eye of another citizen, they shall destroy his eye. If he has broken the bone of a citizen, his bone shall they break.

In the code of Hammurabi, we also find the law of a son for son, and daughter for a daughter. Consequently, if a builder causes the death of the son or daughter of the owner, then the builder’s son or daughter is put to death, not the builder. What we see in effect, is that according to ancient Near-Eastern laws, human beings are regarded as property, as chattel. Hence, if a citizen killed his neighbor’s son, the neighbor has the right to come and kill the citizen’s son. If a citizen raped his neighbor’s daughter, the neighbor has the right to rape the citizen’s daughter or take his daughter as a concubine. If a citizen killed his neighbor’s slave, he could give his neighbor 18 camels and they would be even. In other words, the perpetrator must suffer the same loss as the victim.

Almost 400 years after Hammurabi, the Torah came along and revolutionized the entire legal concept of punishment that had been practiced until then. The Torah declares: (Deuteronomy 24:16) לֹא יוּמְתוּ אָבוֹת עַל בָּנִים וּבָנִים לֹא יוּמְתוּ עַל אָבוֹת אִישׁ בְּחֶטְאוֹ יוּמָתוּּ , fathers may not be put to death for the sin of their children, neither shall children be put to death for the sin of their fathers, every person shall be put to death for his/her own sin.

In effect, the Torah transformed the underpinnings of the ancient penal system, by declaring that people are responsible for their own acts, and that, under no circumstances, may a third innocent party be punished for someone else’s crime. Furthermore, firmly dismissing the notion that human beings are chattel, the Torah declares that human beings, who are created in G-d’s image, are G-d’s property. Therefore, when a human life is taken illegally, according to the Torah, a crime has not been committed against the owner, the father or the mother, but rather, a crime has been committed against G-d.

The entire Western world has adopted this Jewish point of view, with one significant modification. Instead of assuming Judaism’s theocratic tone, the law has been “secularized,” and G-d has been eliminated. Therefore, homicide cases are always proclaimed as crimes against the State vs. the accused, e.g. the State of New York vs. John Doe, or the Queen of England vs. John Smith. These statements, in effect, declare that a crime has been committed against society–the contemporary substitute for G-d.

If “An eye for an eye” does not literally mean an eye, but rather monetary compensation for an eye, why then does the Torah use this provocative formulation of עַיִן תַּחַת עַיִן , “An eye for an eye”? Maimonides and other commentators explain that this phraseology is purposely used to underscore that in G-d’s eyes, the perpetrator truly deserves to lose his own eye. A perpetrator cannot achieve full forgiveness by merely paying for the damages. In fact, the perpetrator is expected to beg his victim to forgive him.

Other commentators explain further that the particular expression, “An eye for an eye” comes to underscore a revolutionary concept affirmed by the Torah. While the perpetrator may deserve to lose an eye, and perhaps, considering the cruelty involved, deserve to lose even more than an eye, the maximum penalty that can be exacted in punishment is the value of an eye.

So, in effect, the Torah advises us to have no illusions, that no matter how vicious the circumstances of the injury, the maximum punishment may only be up to the value of an eye, and not one iota beyond that point.

Enigmatic phrases often have much to teach us–especially enigmatic phrases from the Torah.

May you be blessed.

Please Note: This Shabbat is Shabbat Parashat Shekalim. On this Shabbat, an additional Torah portion, known as Parashat Shekalim, is read. It is the first portion of four additional thematic Torah portions that are read on the Shabbatot that surround the holiday of Purim.

This week’s supplementary Torah reading is found in Exodus 30:11-16 and speaks of the requirement for all the men of Israel, aged 20 and above, to bring a half-shekel in order to be counted as a member of the People of Israel. In later years, these shekels were donated to the Temple in anticipation of the festival of Passover, when funding for the daily sacrifice had to be renewed.