An Eye for an Eye: If It Means Money, Why Not Say So?
By: Rav Uri Cohen
As we all know, the halakhic response to assault is monetary compensation, even though the Written Torah seems to call for “an eye for an eye.”<1> The Oral Torah here is not up for discussion; the Rambam presents it as an example of Halakhah LeMoshe MiSinai, an opinion that must go all the way back to Har Sinai, as there has never been any machloket (debate) whatsoever that this is the halakhah.<2>
Why then does the Written Torah not just state the halakhah explicitly: if you hurt someone, you’ll have to pay damages? If “an eye for an eye” is never put into practice, why does the Written Torah make it look as if it is? In other words, why did God arrange it so that the Written Torah and Oral Torah here send different messages?
There are two types of approaches to answer this question. The first, classic approach is that “an eye for an eye” would theoretically be justice for an attacker, a punishment which he deserves to receive. The second, radical approach is that “an eye for an eye” serves as a deterrent for an attacker, which needs to stay on the books just in case. We will now elaborate on these approaches.
The first approach, that the Torah is describing what an attacker deserves, is mentioned briefly by the Rambam<3> and elaborated upon by many others. Among them are Rav Soloveitchik and Rav Kook, each of whom presents the approach in his characteristic way. Rav Soloveitchik was once interviewed by The New York Times, and in the course of the interview he explained “an eye for an eye” as an example of dialectical tension:
You know the saying about an eye for an eye. The Bible states that this is what a man deserves when he has taken another man’s sight. It is the full measure of justice. But we also know that no human being can implement such strict justice. In practical terms, it means that you make the man pay compensation. . . . As a teacher I never try to solve questions, because most questions are unsolvable. Judaism is never afraid of contradictions. . . . In many cases, such as the “eye for an eye” situation, there is a contradiction between the demands of love and justice. (The medieval man gave truth – or whatever he thought to be truth – precedence over lovingkindness, and so do the Communists today. What is the difference between a [Tomás] de Torquemada and Mao Tse-tung?) Judaism is basically very tolerant, and usually comes down on the side of lovingkindness. But it acknowledges that full reconciliation of the two is possible only in God. He is the coincidence of opposites.<4>
When a secular Zionist leader asked Rav Kook about the halakhic understanding of “an eye for an eye,” he responded with an analogy based on Kabbalah. Rabbi Chanan Morrison later fleshed it out as follows:
The Kabbalists compared the Written Torah to a father and the Oral Torah to a mother. When parents discover their son has committed a very grave offense, how do they react? The father immediately raises his hand to punish his son. But the mother, full of compassion, rushes to stop his raised arm. “Please, not in anger!” she pleads, and she convinces the father to mete out a lighter punishment. An onlooker might feel that all this drama and conflict is superfluous. In the end, the child did not receive corporal punishment; why make a big show of it? In fact, the scene had great educational value for the errant son. Even though he was only lightly disciplined, the son was made to understand that his actions deserved a much more severe punishment. This idea also holds true for one who injures another. Such an individual needs to realize the gravity of his actions. In practice, we can only make him pay monetary restitution, as the Oral Law rules. But he should not think that money alone can rectify what he has done.<5>
A contemporary teacher in Yerushalayim, Rabbi Michael Hattin, presents this approach with an emphasis on the loss caused to the victim:
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 . . . 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.<6>
To sum up this first approach, the Oral Torah tells the rabbis of a beit din that they should instruct an attacker to pay damages. The Written Torah, in contrast, tells the attacker that he deserves much worse.
The second approach, that the Torah is presenting a deterrent, fits with a funny story in the Gemara. A man with the ominous name of Chanan the Bad (Chanan Bisha) hit someone and was hauled before beit din. Rav Huna instructed him to pay the victim a half-zuz. Unfortunately, the only money that Chanan the Bad had was one zuz, and the coin was in such bad condition that no one would give him change for it. So he solved the problem – he hit the victim again! Then Chanan the Bad promptly paid him the zuz.<7>
It wouldn’t be so funny if people started thinking like Chanan the Bad. Imagine what would happen. That’s exactly the thought experiment proposed by Rabbi Avraham Yoel Abelson, the editor of a Torah journal in the 1890s:<8>
If the holy Torah had written a sentence like “One who blinds another person must pay money as a punishment,” cruelty would have increased. Powerful, wealthy people would have blinded the poor with impunity, happily paying the damages from their deep pockets. After all, why would [the super-rich, the one percent] care about paying the shekels instructed by a judge? And anyone who provoked the ire of such a powerful person would have ended up disabled.
The holy Torah was concerned about this, so it presented a sentence that would apply across the board to both rich and poor: “If someone blinds another person and the like, what he did will be done to him!” Now everyone who is poor and downtrodden could be assured of keeping his body intact. After all, a rich person has lots of money, but not lots of eyes and arms. He will be afraid of hurting anyone, because if he casually disables some poor child, he too might end up disabled for life. The Torah doesn’t distinguish between the super-rich and the super-poor; the law is the same.
Here the Torah made a fence to protect the poor from the powerful and tyrannical. In contrast, if it happens that one person blinds another, whether in a fight or an accident, God gave Moshe the rule in the holy Torah that the person should pay money. With this, the Torah fixed two things: [the Written Torah] set up a fence against the corrupt and powerful, and the Oral Torah made it unlikely that anyone will seek revenge. A beit din can instruct that money must be paid, assuming it is a place where there is no concern that the powerful will get out of hand.
But if it is a place where there is such a concern, then as a fence the Torah law is that the beit din should apply what is written [and do “an eye for an eye” literally]! As Tosafot wrote [regarding a rabbi who had someone’s hand cut off], this is indeed Torah law.<9> [I think that Tosafot’s source is] not an oral tradition, but the written verse of “an eye for an eye.” From here we see that the Written and Oral Torah are one. They cannot exist without each other, like body and soul.<10>
To sum up this second approach,<11> it would be disastrous if people took advantage of the rule of monetary compensation, attacking others with little consequence. The Oral Torah tells the rabbis of a beit din that normally, they should instruct an attacker to pay damages. The Written Torah, in contrast, tells them that when necessary, they should put “an eye for an eye” into practice. That’s pretty radical.
According to both approaches, the message of the Torah is a combination of Written Torah and Oral Torah. In Rabbi Abelson’s words, “the Written and Oral Torah are one. They cannot exist without each other, like body and soul.”
1. Shemot 21:24 (Mishpatim), Vayikra 24:20 (Emor), and Devarim 19:21 (Shoftim). For an intriguing argument that monetary compensation is actually the peshat (simple meaning) of “ayin tachat ayin,” see Dr. Nehama Leibowitz, New Studies in Vayikra (Leviticus), Emor Essay 11, pp. 503-505. http://www.jewishagency.org/nechama-leibowitz/content/23848
2. Rambam, Introduction to Perush HaMishnayot. In Zvi Lampel’s English translation, Maimonides’ Introduction to the Talmud (Judaica Press, 1987), it’s on p. 82. Compare Rambam, Mishneh Torah, Chovel uMazik 1:6.
3. Ibid., Chovel uMazik 1:3.
4. Rabbi Joseph B. Soloveitchik, interviewed in Edward B. Fiske, “Rabbi’s Rabbi Keeps the Law Up to Date,” The New York Times, June 23, 1972, pp. 39, 74.
5. Rabbi Chanan Morrison, “Mishpatim: An Eye for an Eye,” Sapphire from the Land of Israel: A New Light on the Weekly Torah Portion from the Writings of Rabbi Abraham Isaac HaKohen Kook (CreateSpace, 2013), Chap. 39. http://www.ravkooktorah.org/MISHPATIM_67.htm This is an elaboration on a conversation described briefly in Rabbi Simcha Raz, An Angel Among Men: Impressions from the Life of Rav Avraham Yitzchak Hakohen Kook Zt”l (translated by Rabbi Moshe D. Lichtman, Kol Mevaser, 1993), pp. 393-394.
6. Rabbi Michael Hattin, “Parashat Mishpatim: ‘An Eye for an Eye’.” http://www.vbm-torah.org/archive/intparsha/shemot/18-60mishp.doc
7. Bava Kama 37a.
8. For the reference, I am indebted to Rabbi Yosef Patzanovski, Pardes Yosef, Vol. 2 (Lodz, 1937), Mishpatim, Chap. 21, #24, s.v. vera’iti.
9. Tosafot, Sanhedrin 58b, s.v. katz. Tosafot are disagreeing with Rashi, who thinks that the case of having someone’s hand cut off was an application of the rule in Sanhedrin 46a that a beit din has the right to punish in a way that does not follow Torah law, when necessary. (The rabbi in this case was Rav Huna, the same one who judged Chanan the Bad; perhaps this is a reference to a later encounter between the two of them.)
10. Rabbi Avraham Yoel Abelson, Knesset Chakhmei Yisrael, Kuntres 6 (1896), 115:9:5. http://www.hebrewbooks.org/pdfpager.aspx?req=46174&st=&pgnum=37 The relevant part, which I translated here, starts thirteen lines from the bottom.
11. For a variation, see Rabbi Avraham Sar-Shalom, “An Eye For An Eye,” World Mizrachi Weekly Parsha Newsletter, Parshat Emor (May 11, 2005). https://web.archive.org/web/20051027163913/http://mizrachi.org/elearning/View_parsha.asp?id=223