Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.
“An eye for an eye, a tooth for a tooth”: This phrase from Exodus is one of the best-known sayings in the Torah, and one that has done great harm to the reputation of Judaism over the ages. Taken on its own terms, the idea that an injury should be repaid in kind can be seen as an attempt to impose fairness and justice in criminal law. It’s easy to imagine that, in pre-biblical societies, the victim of an injury might retaliate by taking his attacker’s life; this would create a cycle of feuding and vengeance that go on for generations. By limiting the punishment for injury, by insisting that every injury be repaid in kind, the Torah seeks to take revenge out of the hands of individuals, to impose a standard that is immediately comprehensible as fair.
However much of an advance “an eye for an eye” might have been when the Torah was written, however, by the time of the Romans it had come to seem like a recipe for petty, tit-for-tat legalism. To Christianity, “an eye for an eye” represented everything that was wrong with Judaism, as a religion of law rather than love. Jesus made the point in the Sermon on the Mount, when he specifically repudiated this phrase: “Ye have heard that it hath been said, an eye for an eye, and a tooth for a tooth: But I say unto you, that ye resist not evil, but whosoever shall smite thee on thy right cheek, turn to him the other also.” Judaism offers grudging vengeance, Christianity offers a sublime generosity—an equation that was, and continues to be, highly influential in Western culture. The Merchant of Venice, in which the Jewish merchant Shylock insists on extracting a pound of flesh from Antonio in accordance with the letter of the law, is a metaphorical gloss on the same idea.
What is much less well-known, even to many Jews, is that by the time Jesus lived, Judaism itself had also repudiated the literalism of “an eye for an eye.” That became clear in this week’s Daf Yomi reading, in Chapter Eight of Tractate Bava Kamma. As it proceeds, this tractate deals with increasingly serious kinds of personal injury. It began by discussing inadvertent damage caused by a goring ox or a spreading fire; then it went on to deal with theft, which deliberately inflicts damage to property. Now, in Chapter Eight, the rabbis turn to the most serious type of all, the deliberate infliction of bodily injury, including death. And right at the start, they are confronted with the biblical edict that personal injuries are supposed to be punished by inflicting the same injury on the attacker—“an eye for an eye, a tooth for a tooth.”
Yet this principle is directly contradicted by the mishna in Bava Kamma 83b, which has nothing to say about reciprocal injuries. Rather, the mishna says that “one who injures another” is liable to pay five kinds of penalties: “for damage, for pain, for medical costs, for loss of livelihood, and for humiliation.” In other words, the mishna starts from the assumption that the penalty for injury is the payment of money. But where does this assumption come from, and how can it be reconciled with the seemingly explicit statement in Exodus, which is repeated in Leviticus: “A fracture for a fracture, an eye for an eye, a tooth for a tooth; as he has given a blemish to a person, so shall it be given unto him”?
The truth is that, as we have seen over the last four years of reading Daf Yomi, the rabbis very often depart from biblical law, even to the extent of completely rewriting it. Exactly when in Jewish history the practice changed from reciprocal injury to the payment of a fine is unclear, but by the time the mishna was compiled, in the first century CE, the change was already well-established. However, it is a fundamental principle of the Talmud that such revisions can never be acknowledged as revisions. After all, if the Bible is the word of God, no human court can modify it. What it can do, instead, is to reinterpret the Bible so that it says the reverse of what it seems to plainly mean. Such reinterpretation is authorized by the idea that the oral law, as recorded in the mishna, is of equal antiquity with the written law because both were given to Moses at Sinai.
In this case, however, the contradiction between the mishna and the Torah is so direct that the rabbis of the Gemara are clearly unsettled by it. “The Merciful One states: An eye for an eye,” the Gemara points out, and “you might say an actual eye” is what it means. But this common-sense reading is immediately ruled out, in strong terms: “That interpretation should not enter your mind,” the Gemara replies, as though it were a dangerous temptation that must be resisted. Instead, the rabbis quote a baraita, which gives the correct interpretation of the Torah verse: “One might have thought that if one blinded the eye of another, the court blinds his eye as punishment; or if one severed the hand of another, the court severs his hand; or if one broke the leg of another, the court breaks his leg.”
However, the proper way of reading the Torah, in this case, is to ignore the surface meaning and focus on a meaningful juxtaposition. “Therefore, the verse states ‘One who strikes a person’ and the verse also states ‘And one who strikes an animal,’ to teach that just as one who strikes an animal is liable to pay monetary compensation, so too, one who strikes a person is liable to pay monetary compensation.” By stating these two cases in consecutive verses (Leviticus 24:18-19), the rabbis argue, God meant us to deduce that the law governing human injury is the same as the law governing animal injury—which, as we have seen extensively in Bava Kamma, is compensated by the payment of money. For the rabbis, this kind of juxtaposition is one of the basic hermeneutic tools by which they interpret God’s real intention in the Torah—which can be, as in this case, the direct opposite of his apparent meaning.
But the Gemara is not content with this explanation, and over the next pages the rabbis go on to test it and offer alternatives. First of all, the rabbis note, the parallel between the two verses in Leviticus is not exact: The Torah speaks of “striking an animal” and then of “maiming his neighbor,” using two different verbs. But the Gemara dismisses this as a merely verbal quibble: There is analogy “from striking to striking,” because the action is the same even though the verbs may differ. An alternative explanation is cited from the following verse in Leviticus, which reads, “as he has given a blemish to a person, so shall it be given unto him.” The second “given,” here, is to be understood as giving money, not inflicting injury. Yet a third explanation comes from a verse in Numbers, which reads, “And you shall not take ransom for the life of a murderer, who is guilty of death, for he shall die.” By specifying that there is no ransom, or monetary payment, for sparing the life of a murderer, the text implies that there is ransom in the case of nonlethal injury.
After offering these textual bases for the law, the Gemara goes on to cite several logical explanations for it. The first comes from Rabbi Dostai ben Yehuda, who notes that people’s eyes can be of different sizes. What if someone with large eyes put out the eye of someone with small eyes? If the court demanded a large eye in retaliation for a small one, there would be an inequity, which would defy the Torah principle “You shall have one manner of law” for all people. To avoid this inequity in eye sizes, the law calls for the payment of money instead. But the rabbis go on to dismiss Dostai’s (remarkably weak) argument, because what is at issue is surely not the size of the eye, but its power of vision. If retribution were based strictly on physical dimensions, the rabbis point out, a large man could kill a small man without fear of the death penalty; but this would be absurd, because it is not the size of the body but its life that matters.
Rabbi Shimon ben Yochai then comes to offer another challenge to “an eye for an eye.” Imagine a case, he argues, in which a blind man puts out the eye of a seeing man. Because it is impossible to blind a man who is already blind, the attacker would be immune from punishment; and this would again violate the principle “you shall have one manner of law.” To avoid this inequity, damages are assessed in money, which everyone can pay. Yet here too the Gemara is not satisfied; after all, the rabbis reason, the Torah might intend literal retaliation in every case where it is possible, only exempting cases like the blind man, where it can’t be carried out.
Finally, after several more explanations and challenges, we come to a rabbi who actually does take the Torah verse at face value: “Rabbi Eliezer says: ‘An eye for an eye’ is referring to an actual eye.” But the Gemara is so convinced that this is incorrect that it immediately explains away Eliezer’s position. What he really meant is that the attacker must pay damages equal to the amount that he would have suffered if he had lost his own eye. But actually taking his eye is beyond the pale of consideration. The Talmud documents the evolution of Jewish legal and moral thinking over the centuries; and the more I read it, the more I am convinced that no account of “what Judaism believes” can be complete without putting the Talmud at the heart of things.
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Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.