Parshat MISHPATIM

An Eye for an Eye (Exodus 21:22-27) by Joel Cohen

This is where the rubber really meets the road in Biblical interpretation.
The parsha tells us that if men fight and collide with a pregnant woman and she miscarries but doesn't die, the husband determines the worth of the damages and the judges impose the payment. Clearcut -- and seemingly appropriate.
But not so, if she dies. There is no talk in that instance of monetary payment. Rather, an award is made of “a life for a life” -- seemingly capital punishment. But, the Torah goes on from there: “an eye for an eye, a tooth for a tooth, a hand for a hand,” etc.
One has to admit -- you really have to -- that this all sounds cruel and barbaric. But the rabbis say it’s not, because the intent is different than the words. Rather the commandment actually intends the “monetary value” of an eye, not the physical eye, etc. But how does that make any sense? If the pregnant woman dies, is there no capital punishment occasioned by the loss of her life? It’s only the “monetary value” of her life? One can’t have it both ways: there is no question that the Torah does, indeed, intend capital punishment for certain offenses.
• Even accepting the view that the Torah truly meant the “monetary value” of the body part that the victim lost -- not the body part itself -- why would God leave such a fundamental ambiguity for a vulnerable mankind that might misread the Torah over history, and so grievously misinterpret His Written Word?
• And given the other facially archaic commands in Mishpatim, such as death by stoning, trial by ordeal or the permissibility of slavery, even a form of slavery less offensive than its current meaning, why is it so hard to believe that the Torah might actually have intended an “eye for an eye,” literally?

Rabbi Adam Mintz

Joel---as we begin the legal section of the Torah, it is important to take a step backwards and review the legal landscape of the ancient world. The Torah was not the first legal code written in the history of the world. Almost four hundred years before Har Sinai, Hammurabi, the king of the Babylonian Empire, wrote a code called Hammurabi’s Code. Thanks to the work of French archaeologists at the beginning of the twentieth century we have these two tablets complete with hundreds of laws and stipulations. Hammurabi’s Code is based largely on the principle of lex talionis, the law of retaliation. Therefore, not only does it command “an eye for an eye”, it also says that if a builder builds a building which collapses and the son of the owner of the building dies, the son of the builder is put to death.
Historians explain that Hammurabi introduced these principles to correct the anarchy that was prevalent at the time. Prior to Hammurabi, if someone injured another person, the relatives of the injured party would retaliate as they saw fit. Hammurabi instituted that fact that a physical injury was a crime against the state and was legislated by the emperor’s code.
While Hammurabi’s Code reflects great progress and sophistication in the ancient world, the Torah recognizes that there is a flaw in his logic. Lex talionis is really not fair. How can one compare the value of the eye of a diamond cutter, who will not be able to work with only one eye, to the value of the eye of an investment banker? While Hammurabi solved the problem of anarchy in the ancient world, his rulings needed to be perfected and this was the Torah’s position. “An eye for an eye” is not to be taken literally. Rather, it refers to monetary compensation.
Now, only one question remains. If the Torah meant monetary compensation, why didn’t it say it explicitly? I believe that the Torah was aware that people at the time were familiar with the rules in Hammurabi’s Code. In order to emphasize that the rule of lex talionis had been improved upon, the Torah states the rule in terms of “an eye for an eye” but was interpreted from the earliest time as referring to monetary payment.
Here, in this most famous example, the Torah reacts to the contemporaneous legal code and introduces the tradition of the oral law that accompanied the written tradition.