Thursday, May 10, 2012

A literal eye for an eye

Summary: according to Ibn Caspi, Ibn Ezra, Rambam, and Shadal. Plus, what is morally called for?

Post: Consider the following pasuk from parashat Emor, perek 24:

19. And a man who inflicts an injury upon his fellow man just as he did, so shall be done to him [namely,]יט. וְאִישׁ כִּי יִתֵּן מוּם בַּעֲמִיתוֹ כַּאֲשֶׁר עָשָׂה כֵּן יֵעָשֶׂה לּוֹ:
20. fracture for fracture, eye for eye, tooth for tooth. Just as he inflicted an injury upon a person, so shall it be inflicted upon him.כ. שֶׁבֶר תַּחַת שֶׁבֶר עַיִן תַּחַת עַיִן שֵׁן תַּחַת שֵׁן כַּאֲשֶׁר יִתֵּן מוּם בָּאָדָם כֵּן יִנָּתֶן בּוֹ:

Thus, if we interpret this most literally, a literal eye for a literal eye. He inflicted an injury upon a person, so that precise injury should be inflicted upon him.

Rashi cites Chazal on this pasuk:

so shall be done to him: Heb. כֵּן יִנָּתֵן בּוֹ. Our Rabbis explained that this does not mean the actual infliction of a wound, but payment of money. [And how is an injury estimated? The victim] is evaluated as a slave [if he would not have had the injury, and how much with the injury, and the difference is the compensation]. This is why Scripture uses the expression נְתִינָה, “giving,” [thereby alluding to] something that is “handed over (הַנָתוּן)” from hand to hand. — [B.K. 84a]כן ינתן בו: פירשו רבותינו, שאינו נתינת מום ממש אלא תשלומי ממון, שמין אותו כעבד, לכך כתוב בו לשון נתינה, דבר הנתון מיד ליד:

The word yinaten is the nif'al, that is, the passive. So if it does not mean 'so shall be inflicted upon him [the injurer]', it would mean here 'so shall he [the injuree] be given [monetary payment].' I've discussed this in the past, but let us see what Ibn Caspi has to say here:

It is possible I misunderstand him here, but it certainly seems as if he adopts the more literal explanation as the plain meaning, perhaps even without any modification! He points us to Ibn Ezra and the Rambam. Here is what Ibn Ezra says:

כד, כ]
כן ינתן בו -
יש בי"ת תחת על כמו: אשר אני רוכב בה ורבים כן. 
או פירושו כן ינתן בו, אם לא יפדה.

That is, regarding the ב of בו, 'there is a ב which functions in place of על' and thus this means עליו, such that it means "so shall he be given for it", 'as we see in Nechemiah 2:

יב  וָאָקוּם לַיְלָה, אֲנִי וַאֲנָשִׁים מְעַט עִמִּי, וְלֹא-הִגַּדְתִּי לְאָדָם, מָה אֱלֹהַי נֹתֵן אֶל-לִבִּי לַעֲשׂוֹת לִירוּשָׁלִָם; וּבְהֵמָה, אֵין עִמִּי, כִּי אִם-הַבְּהֵמָה, אֲשֶׁר אֲנִי רֹכֵב בָּהּ.12 And I arose in the night, I and some few men with me; neither told I any man what my God put into my heart to do for Jerusalem; neither was there any beast with me, save the beast that I rode upon.

and many others like it.

Alternatively, its explanation is "so shall it be inflicted upon him" -- if he does not redeem.'

Related, see Ibn Ezra on cutting off a woman's hand, towards the end of parashat Ki Teitzei. Thus, we see Ibn Ezra ready to establish this literal reading as the true meaning of the pasuk, but letting it be superseded by the concept of kofer.

Ibn Caspi says that Rambam hints at his opinion in this. Perhaps he is referring to the following from Mishneh Torah, hilchos chovel umazik, perek 1:
ג  זֶה שֶׁנֶּאֱמָר בַּתּוֹרָה "כַּאֲשֶׁר יִתֵּן מוּם בָּאָדָם, כֵּן יִנָּתֶן בּוֹ" (ויקרא כד,כ)--אֵינוּ לַחְבֹּל בְּזֶה כְּמוֹ שֶׁחָבַל בַּחֲבֵרוֹ, אֵלָא שְׁהוּא רָאוּי לְחַסְּרוֹ אֵבֶר אוֹ לַחְבֹּל בּוֹ כְּמוֹ שֶׁעָשָׂה; וּלְפִיכָּךְ מְשַׁלֵּם נִזְקוֹ.  וַהֲרֵי הוּא אוֹמֵר "וְלֹא-תִקְחוּ כֹפֶר לְנֶפֶשׁ רֹצֵחַ" (במדבר לה,לא), לָרוֹצֵחַ בִּלְבָד הוּא שְׁאֵין כֹּפֵר; אֲבָל לְחֶסְרוֹן אֵבָרִים אוֹ לְחַבְלוֹת, יֵשׁ כֹּפֶר.ש

ד  וְכֵן זֶה שֶׁנֶּאֱמָר בַּחוֹבֵל בַּחֲבֵרוֹ וּמַזִּיקוֹ "לֹא תָחוֹס, עֵינֶךָ" (דברים כה,יב), שֶׁלֹּא תָחוֹס בַּתַּשְׁלוּמִין:  שֶׁמֶּא תֹּאמַר עָנִי הוּא זֶה, וְשֶׁלֹּא בְּכַוָּנָה חָבַל בּוֹ; אֲרַחֲמֶנּוּ.  לְכָּךְ נֶאֱמָר "לֹא תָחוֹס, עֵינֶךָ".ש
"This that the Torah stated {in Emor, the pasuk above}, 'Just as he inflicted an injury upon a person, so shall it be inflicted upon him.' -- this is not to inflict upon him {the actual injury} that he inflicted upon his fellow, but rather that he is fitting to lose a limb or to get inflicted upon as he did. And therefore, he should pay his damages. And behold, it states in Bemidbar 35:31 'and you shall not take kofer for the life of the murderer'. For a murderer alone is there no kofer, but for loss of limbs or injuries, there is kofer.

And so too this is stated by one who injures his fellow and damages him {in the aforementioned pasuk in Ki Teitzei, Devarim 25:12, about a woman who crushes a man's testicles}, 'your eye shall not spare', that you should not have mercy in the payment, lest you say 'he is a pauper', or 'he did not injure him intentionally, and therefore I will have mercy on him'. Therefore it is stated, 'your eye shall not spare.' "

(And Shadal says on the pasuk in Bemidbar 35:31, upon 'and you shall not take kofer for the life of the murderer', the comment that "they said well in Shas: but you shall take kofer for matters of limbs, an eye  for an eye." Shadal intends the same.)

There was a case recently in the news about an Austrian dentist who removed all of her ex-boyfriend's teeth. Her punishment was three years in prison. I would imagine that in addition, the ex-boyfriend could sue her civilly for monetary compensation. But imagine it was just money. Is that really justice, that someone can ruin someone's life in this manner and walk away with such a minor penalty? Viscerally, emotionally, there does seem to be some merit to 'an eye for an eye'. On the other hand, are you truly going to take the most horrific actions that sick, twisted or evil people do and, in a civilized society, appoint an agent for the people to act in precisely the same manner? Here is a case from Iran from last year, where a spurned suitor threw acid in a woman's face, blinding her in both her eyes. The punishment was to blind one of his eyes, since a man is worth two women. In the end, right before the court was to impose this punishment, she pardoned him and spared him this penalty.


E. Fink said...

NIce post.

FYI, the dentist story was a hoax.

AryehS said...

How does Maimonides in Mishneh Torah hint to a literal reading of an eye for an eye?

I think Ibn Kaspi means Guide 3:41, where he writes:

> The punishment meted out to anyone who has done wrong to somebody else consists in general in his being given exactly the same treatment that he has given somebody else... He who has deprived someone of a member, shall be deprived of a similar member...

What of the Talmud's interpretation of monetary compensation?

> For at present my purpose is to give reasons for the [biblical] texts and not for the pronouncements of the legal science. Withal I have an opinion concerning this provision of legal science, which should only be expressed by word of mouth.

See Shem Tov there that seems to imply what Maimonides means is a rejection of the Talmud:

> I am in wonderment that [Maimonides] states that his purpose was to give the reason for Scripture, and not the reason for the Talmud. For Scripture is not authentic, neither completely nor [even] partly, without the tradition of our rabbis as they have explained in the Talmud. Maimonides already taught us [in his introduction to the Mishnah] that were the King Messiah to come and say that the interpretation of the verse is literally “an eye for an eye”, he would incur the death penalty! … God should forgive him and us!


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