The peasant was a hard man, who bore many grudges, but most of all against his good natured neighbor. Perhaps to teach him to be less harsh, or perhaps to teach him a lesson, an angel appeared to the peasant in a dream. I am here to give you anything you desire, proclaimed the angel. The peasant could hardly contain himself, and greedily began to envision what he would ask for. But just as the peasant was about to make his request the angel added the following caveat. “Whatever I grant you, I will give double that gift to your neighbor,” intoned the angel. Stunned, the peasant paused, reconsidered and then smiled serenely. “I wish for you to take out one of my eyes…”
There is probably no phrase which encapsulates the primal urge for vengeance or recompense than “An eye for an eye, a tooth for a tooth”. What punishment could be more just than to deprive an individual of his eye or his tooth, just as he has deprived his victim of the benefits of their eye or tooth?
This phrase is of course a verbatim quote of a passuk from this week’s Parsha, “Ayin tachat ayin, shane tachat shane”(21:24). But as is well known to anyone with even a passing acquaintance to the intersection between Torah sheBichtav and Torah sheBe’al Peh, the Torah does not in fact demand such harsh retribution from an individual who took out someone else’s eye. Instead, we are taught that the perpetrator (herein the mazik) needs to pay the monetary value of the eye to the victim.
This interpretation, codified by both Rambam in the Mishneh Torah and by the Mechaber in the Shulchan Aruch, naturally lends itself to the question of “Why”. If the penalty for maiming another individual is to pay monetary compensation, why doesn’t the Torah simply say that? Why does the Torah choose to present the punishment as being the physical equivalent of the crime, when in fact it is something entirely different?
Seforno on the passuk suggests that by describing the punishment for injuring another individual as being similarly maimed the Torah is in fact sharing with us the “pure” and fitting punishment, as would be prescribed by unvarnished justice. “Mida K’neged Mida”, measure for measure. In an ideal world this would be the punishment. But we live in a messy reality. How can we truly mete out exact punishment? Perhaps in removing the mazik’s eye we will cause greater damage than he had caused his victim. Or perhaps we will cause less. As such, we are forced to fall back on a less precise but more realizable standard, namely monetary compensation. In this reading the choice to punish by imposing a monetary penalty is an admission of our inability to fairly apply the appropriate penalty. But by prescribing the true, if unattainable punishment, Torah sheBichtav preserves the principle and the ideal, while allowing Torah sheBe’al Peh to tell us how to actually administer the punishment.
Rav Mordechai Breuer (Megadim 24) points out that there is a certain irresoluble tension inherent in the eye for an eye situation. What is the goal here? Are we interested in punishing the mazik, or do we want to compensate the victim? We really can’t have it both ways. If we choose to take out the mazik’s eye, the goal of punishment is realized, but the victim is in no way compensated. On the other hand, financially compensating the victim gives some measure of compensation to the partially blinded individual, but it leaves the mazik essentially unscathed. So which value takes precedence, the need to punish the criminal or the need to compensate the victim? Ultimately, as Torah sheBe’al Peh teaches, the need to compensate the victim comes first. We can argue that the Torah is interested in moving forward and rebuilding, not wallowing in the past. To punish the mazik while at the same time leaving the victim uncared for is to leave two individuals scarred and bitter, with no obvious path forward. So we must choose compensation. But how do we remember the crime and despite everything else censure the guilty party? The solution is to describe the punishment in one way, while applying it in an entirely different fashion.
In a fascinating essay, (Kedushat Peshuto Shel Mikra volume I, pp.161-164) Rav Yehuda Cooperman argues that in using the language of a physical as opposed to a monetary punishment, the Torah is doing more than paying lip service to an unattainable punishment. Counterintuitively, he argues that the simple peshat of the passukim, namely that we remove the eye of the mazik, is in fact fulfilled, alongside the financial penalty prescribed by Torah sheBeal Peh. While he gives a few proofs for this contention, we will suffice with just one example.
The Gemara in Baba Kamma (84A) records the view of Rabbi Eliezer, who posits that the passuk of “Ayin tachat ayin” should be understood literally. The Gemara immediately challenges this approach, asking if it is possible that Rabbi Eliezer goes against the established tradition as articulated by a series of Tanaim previously quoted in the Gemara. Rav Ashi answers the question by explaining that Rabbi Eliezer is suggesting that when evaluating the monetary value of a lost eye, that we evaluate the value of the mazik’s eye, not the eye of the victim. By doing so we stress the culpability of the mazik and highlight the fact that it is his eye that should be removed, even as he fulfills his obligation by financially compensating the victim. In a very real way it is now his eye that is replacing the eye that he deprived his victim of.
After all is said and done, however, have we truly answered our question? Do we understand why the Torah did not spell out that the mazik’s liability is financial and not physical? I think we still need one last observation made by Rav Cooperman (p.161). Had the Torah only listed the financial penalty without also stressing the ideal of Mida K’neged Mida we would have walked away from the passuk thinking that taking out someone’s eye is no worse than breaking a window in their house or scratching their car. We have caused some damage and we have our obligation to make amends begins and ends with a bank transfer or a payment using a banking app. How inadequate our Torah would be, Rav Cooperman reminds us, if that were to be the case. Causing grievous damage to another person is life changing, and oftentimes life shattering, and the mazik needs to step up and take responsibility. It is for this reason that Rambam (Hilchot Chovel U’Mazik 5:9) reminds us that even once the mazik has paid his financial obligation to the victim, he has still not yet atoned for his sin. Like any other “averah bein adam l’chaveiro”, atonement can only come if and when the victim forgives the mazik.
