“An Eye For an Eye”: Retributive or Restorative Justice?: Emor

Emor: Leviticus 21:1 – 24:23

Toward the end of this week’s Torah portion we find the verses that have fueled centuries of anti-Semitism and often been a pretext for abandoning one’s Jewish (or Christian) faith.

           If anyone kills any human being, he shall be put to death. One who kills a beast shall make restitution for it: life for life. If anyone maims his fellow, as he has done so shall it be done to him: fracture for fracture, eye for eye, tooth for tooth. The injury inflicted on another shall be inflicted on him. [Lev. 24: 17-20]

 Rarely have verses in Torah been more misconstrued than these, and this misunderstanding has led to depicting these words as the cruel embodiment of heartless vengeance, abject bloodthirstiness and brutality, that—in anti-Semitic lore—“the Jew” inherited from his text and typified. This debasing characterization of “the Jew” was spread throughout Christendom early on, as it contrasted perfectly with the propagandistic image of Christianity as the religion of love, compassion and forgiveness.

Our sages have expounded on these verses for thousands of years, from the early rabbis of the Talmud in the 1st century CE, to Saadia Gaon and his polemic with Karaites leaders in the 10th century, the Maharal of Prague in the 16th century and in our generation. One of the early pieces of Talmudic exegesis is by Rabbi Shimon bar Yochai—whose mystical depiction of his death (160 CE) we mark every year, as we will next week, on Lag BaOmer (the 33rd day of the Omer count).

The Talmud recounts the argument:
          Rabbi Shimon bar Yochai stated: Eye for eye – money. You say money, but perhaps it means literally an eye? In this case if a blind man blinded another, a cripple maimed another, how would I be able to give an eye for an eye literally? Yet the Torah states (Lev. 24:22): One law there shall be for you — a law that is equitable for all of you. [Bava Kamma 83b-84a]

Bar Yochai, as do all Talmudists, takes the injunction, “an eye for an eye,” seriously, and tries to understand the proffered law by testing its validity in its most extreme expressions.  To our sages, a law in Torah properly understood would apply in every life-circumstance. He finds that a literal interpretation of the text—because it cannot be applicable in all situations—is self-contradictory and cannot, therefore, be what the Torah meant. Rather, the law must speak of evaluating the value of an eye, a tooth, a limb to each individual, and compensating the victim commensurately financially for their loss.

The Talmud brings up a second argument:
           It was taught in the school of Hezekia: Eye for Eye, life for life, and not a life and an eye for an eye, for should you imagine it is literally meant, it would sometimes happen that an eye and a life would be taken for an eye, for in the process of blinding him he might die.

Hezekia’s disciples point to the physical impossibility of exacting the identical wound on the perpetrator as punishment. Saadia Gaon explains what they meant:
“For if a man deprived his fellow of a third of his normal eyesight by his blow, how can the retaliatory blow be so calculated as to have the same result, neither more nor less, nor blinding him completely? Such an exact reproduction of the effects is even more difficult in the case of a wound or bruise which, if in a dangerous spot, might result in death. The very idea cannot be tolerated.” [In N. Leibowitz; “New Studies in Vayikra,” p. 497]

Lex Talionis, the law of retaliation, mistakenly connected with these verses, is the foundation of what we know as retributive justice. But the Biblical principle was in the service of wholeness, of appropriate reparation, and restoration. Restorative, not punitive justice was the intent behind these words. Nechama Leibowitz quotes the Maharal of Prague in her commentary: “Though [one] has compensated the victim for the injury, he has still not discharged his obligation until he asked his forgiveness.” [op. cit., P.506] “An eye for an eye, a tooth for a tooth” aimed at rehabilitation, reconciliation, forgiveness and healing of offenders, victims and community. It enshrined empathy, compassion and clemency in the Jewish Constitution.