Commenting on one of the most well-known legal passages in the Torah, the rabbis overrule the seemingly clear intent of the text. The Torah states, in its discussion of the laws of personal injury: “…And you shall award a life for a life, an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot, a burn for a burn, a wound for a wound, a bruise for a bruise.”
The rabbis in the Talmud, however, maintain that the Torah never intended to mandate physical punishment in personal injury cases. Instead, they say, the text actually authorizes financial restitution. The oft-quoted phrase “an eye for an eye,” for example, means that the perpetrator must pay the monetary value commensurate with the victim’s injury.
All the other cases cited in these passages are to be understood similarly, in terms of financial compensation.
Why doesn’t the Torah simply say what it means?
Over the ages, the “eye for an eye” formula has been cited by critics as proof of the vengeful, primitive nature of Mosaic law. If the Torah never meant to mandate physical punishment in cases of personal injury, why wasn’t the text more clearly written?
A great deal of misunderstanding, misinterpretation and trouble could have been avoided had the Torah simply stated, “The court shall levy the appropriate compensatory payment in cases of personal injury.”
An easily missed phrase in the Rambam’s above-cited codification of the law provides a glimpse into the Torah’s true intent:
“The Torah’s statement ‘As a man shall inflict a wound upon a person, so shall be inflicted upon him’ does not mean that we should physically injure the perpetrator, but that the perpetrator is deserving of losing his limb and must therefore pay financial restitution.”
Apparently the Rambam believes, as do many other scholars who echo the same sentiment, that the Torah confronts a serious dilemma as it moves to convey its deeply nuanced approach to cases of personal injury: using the tools at its disposal, how can Jewish law best reflect the discrepancy between “deserved” and “actual” punishment?
The gravity of the crime is such that, on a theoretical level, on the level of “deserved punishment,” the case belongs squarely in the realm of dinei nefashot (capital law). The perpetrator truly merits physical loss of limb in return for the damage inflicted upon his victim. Torah law, however, will not consider physical mutilation as a possible punishment for a crime. The penalty must therefore be commuted into financial terms.
Had the Torah, however, mandated financial payment from the outset, the full gravity of the crime would not have been conveyed. The event would have been consigned to the realm of dinei mamonot (monetary crimes), and the precious nature of human life and limb would have been diminished.
The Torah therefore proceeds to express, with delicate balance, both theory and practice within the law. First, the written text records the “deserved punishment” without any mitigation: “…an eye for an eye, a tooth for a tooth…” In this way, the severity of the crime is immediately made clear to all. Then, however, the actual monetary punishment must also be conveyed, as well. Concerning this task, the Oral Law serves as the vehicle of transmission. The practical interpretation of the biblical passage – commuting the penalty into financial terms – is divinely revealed to Moshe. This interpretation is then preserved and applied in an unbroken transmission, from the time of Revelation onward.
Jewish law thus finds a way to memorialize both the “deserved” and the “actual” punishments within the halachic code.
A few sentences further in Parshat Mishpatim, an even more glaring example of the discrepancy between theory and practice in the realm of punishment emerges. In this case, however, both variables are recorded in the written text itself. As the Torah discusses the laws of a habitually violent animal, two conflicting consequences appear in the text for the very same crime.
The Torah states that, under normal circumstances, if an individual’s ox gores and kills another human being, the animal is put to death but the owner receives no further penalty. If, however, the animal has shown clear violent tendencies in the past – to the extent that the owner has been warned yet has failed to take appropriate precautions – the Torah emphatically proclaims, “…The ox shall be stoned and even its owner shall die.”
The written text itself seems bewilderingly contradictory. On the one hand, the Torah clearly states that the owner of a violent animal “shall also die.” Then, however, the text offers the condemned man an opportunity to escape his dire fate through the payment of a financial penalty assessed by the court.
Once again our question can be answered by considering the distinction between “deserved” and “actual” punishment.
The Torah wants us to understand that, on a theoretical level, the owner of the ox deserves to die. His negligence has directly resulted in the loss of human life. On a practical level, however, this sentence cannot be carried out. Halacha only mandates capital or corporal punishment in cases of active crimes. Crimes of “uninvolvement,” consisting of the failure to do something right, cannot carry such penalties in an earthly court. The owner who fails to guard his dangerous animal can only be fully punished through heavenly means.
Through carefully balancing the textual flow, the Torah manages to convey a complex, multilayered message of personal responsibility in a nuanced case of “uninvolvement.”
Adapted from one of the multiple essays on this parsha in Unlocking the Torah Text by Rabbi Shmuel Goldin.