The first section of Sefer haBrit (Exodus 21:2 – 22:16) deals with civil and criminal matters. There it is stipulated that if two men become engaged in a brawl and one of them shoves a pregnant woman, causing her to miscarry, the man responsible must pay the husband of the woman compensation to be determined in court that will take into account the demand of the husband. In contrast (and here comes the oft-misunderstood passage):
But if other damage ensues, the penalty shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise. (Exodus 21:23-25) (See also Leviticus 24:19-20.)The term for this legal formulation is Lex Talionis (the law of retributive justice). A similar formulation is found in the Code of Hammurabi, who ruled Babylon in the 18th – 17th century B.C.E. The Code calls for death and disfigurement on the basis of an “eye for an eye, tooth for a tooth.” (At the same time, it also calls for a presumption of innocence – the earliest example on record – and the presentation of evidence in court.) We do not know if the Lex Talionis of Hammurabi’s Code was carried out literally in ancient times. There are scholars who believe that the Code itself was not the law code by which the society operated, but rather the fulfillment of a divine mandate by the gods to the king: a law code to prove he was divinely ordained to rule, but not one which was operative in ancient Babylon.
In the Torah, however, “an eye for an eye…” was never understood literally. Leviticus 18:9 is very clear on this point:
You shall not take vengeance or bear a grudge against your countrymen. Love your fellow as yourself: I am the Lord.Talmud is also clear: “eye for an eye” means that one who causes physical injury pays compensation in proportion to the extent of the injury, no more and no less. Torah’s laws apply to all equally, and so the notion of literal physical retaliation is absurd: if a blind man put out the eye of a sighted man, how could the law be fulfilled if understood literally? The actual monetary amount to be paid was determined by a court.
It was taught [in a baraita]: R. Shimon b. Yochai says: "Eye for eye" means pecuniary compensation. You say pecuniary compensation, but perhaps it is not so, and actual retaliation [by putting out an eye] is meant? What then will you say where a blind man put out the eye of another man, or where a cripple cut off the hand of another, or where a lame person broke the leg of another? How can I carry out in this case [the principle of retaliation of] "eye for eye" seeing that the Torah says, You shall have one manner of law, implying that the manner of law should be the same in all cases? (Baba Kamma 84a)Those who insist that Torah mandates physical retribution either do so out of ignorance or malice. In the case of the latter, they wish to paint the God of Israel as permitting barbaric vengeance, and Jewish law is inherently cruel and savage. In fact, the law of “an eye for an eye…” renders bodily injury in retribution impermissible. Rather, the case must be adjudicated by a judge who determines fair monetary compensation to settle the matter and hopefully prevent the possibility of future violence.
Far from testifying to a “cruel God” or sanctioning vigilante justice and violent retribution, the biblical law of Lex Talionis is the law of a compassionate God who seeks to mitigate the human propensity for vengeance and violence. Recourse and compensation are found in the courts, a place of justice and peace.
© Rabbi Amy Scheinerman