Thursday, September 02, 2004

(Belated) Ki Teitzei #1

Devarim 25:11-12
כִּי-יִנָּצוּ אֲנָשִׁים יַחְדָּו, אִישׁ וְאָחִיו, וְקָרְבָה אֵשֶׁת הָאֶחָד, לְהַצִּיל אֶת-אִישָּׁהּ מִיַּד מַכֵּהוּ; וְשָׁלְחָה יָדָהּ, וְהֶחֱזִיקָה בִּמְבֻשָׁיו.
וְקַצֹּתָה, אֶת-כַּפָּהּ: לֹא תָחוֹס, עֵינֶךָ.
"When men strive together one with another, and the wife of the one draweth near to deliver her husband out of the hand of him that smiteth him, and putteth forth her hand, and taketh him by the secrets;
then thou shalt cut off her hand, thine eye shall have no pity."
According to Chazal these verses do not actually speak of a case in which woman injures a man's testicles, but rather that she grabbed them in a fight and did not damage them. (Consider that it just says וְהֶחֱזִיקָה , which can mean she grabbed, perhaps also connoting force, but does not state any damage.) The concern is the embarrassment she caused him in grabbing him there. (Thus, perhaps, the word בִּמְבֻשָׁיו - "embarrassments.") Furthermore, the punishment is not actually cutting off her hand, but rather the payment of a fine for this embarrassment. (How this comes from the verse via a gezeira shava you can see later.)

That is the more commonly known drasha Chazal give on this case. However, the sifrei has a different explanation:
(Note: edited the text a bit to give the proper pronoun. Changes her --> him.)

[והחזיקה] במבושיו אין לי אלא מבושיו מנין לרבות [כל] דבר שיש בו סכנה ת"ל והחזיקה מכל מקום: וקצותה את כפה מלמד שאתה חייב להציל' [בכפה] מנין שאם אין אתה יכול להצילו בכפה הצילו בנפשה ת"ל לא תחוס עינך ר' יהודה אומר נאמר כאן לא תחוס
"And she grabs him by the testicles" - this only tells me his testicles. From where to include all other things which have in there danger to life? Therefore the verse states "and she grabs" - in all cases.
"then thou shalt cut off her hand" - this teaches that you are required to save him with {by cutting off} her hand. From where that if you are not able to save him with {by cutting off} her hand that we save him by {taking} her life? Therefore the verse states "thine eye shall have no pity."
Rabbi Yehuda says, it says here "thine eye shall have no pity" and it says elsewhere {by a nefesh tachat nefesh case} "thine eye shall have no pity." Just as there it means monetary payment, so too here it means monetary payment.
So we see the derivation of monetary payment, from Rabbi Yehuda.

However, we also see another approach to the verses, which is closer, if not equal, to what we might call the peshat layer of the text. Chazal take the verses as follows:
Two men are fighting. The wife of one of them grabs the other man by the testicles. If she were to crush his testicles, this would constitute a serious injury - one which brings the very real possibility of causing his death.
There is a law of rodef. If someone comes to kill you, you can kill them first to prevent this. And if you see someone running after someone else to kill them (or, as we derive from other verses, in many instances, to rape them), you should kill the pursuer to save his intended victim.
Here, this woman is considered a rodef. Therefore you should cut off her hand, while it is still grasping his testicles, in an attempt to save his life.
You should take the minimal action first, before the maximal action. Thus, if you need to, you should cut off her hand. The same would be true in any case involving threat to the victim's life. Further, if that would not be sufficient, "your eye should not spare," but you should even take her life.

Note that there is a similar law in the Middle Assyrian Laws (A8), in which if a woman grabs a man by the testicles, then if she crushes one of them she loses a finger, and if she crushes both, or if she crushes one and physicians try to save the other but from complications he loses the other, some parts of her body are cut off.

This might well be the peshat explanation of the verse. However, I have my own understanding of ain mikra yotzei miydei peshuto, that the verse does not go out from its intended meaning. Namely, that it is a rule of thumb, that the peshat level always contributes to the level of actual practiced halacha, even though there are also derashot on that pasuk. This rule of thumb is not binding, but a general guideline, and in cases where it does not, Chazal felt free to say that even though in general ain mikra yotzei miydei peshuto, here it does go out of its simple meaning, and the peshat is not applied to actual practice.

There was another explanation of the verse, I think from Ibn Ezra, to partially reconcile Chazal and what seems the pshat meaning of the verse. Namely, for doing something to him (grabbing, or maybe we can say crushing) the punishment is cutting off her hand. However, as in many cases where it is mentioned explicitly in the pasuk, there is a concept of kofer, in which you can redeem the life or injury via money. However, if the woman is poor and cannot pay the kofer, then your eye shall not spare, and you actually cut off her hand. I think it is clear that Chazal would not agree even in this case to cut off her hand, but it is a nice attempt to bridge the gap.

At any rate, the sifrei gave a great explanation which can even be taken on a peshat level for the verse. Each word in the verse is pregnant with meaning, as is the case in all of Torah, when Chazal examine a verse. But I think they would even consider this peshat.


Anonymous said...

Assuming "eye for eye" is literal (until Chazal come along and require "kofer" in all cases), this could be a special case where "eye for eye" could not be literally applied since women don't have testicles. Therefore cutting off the hand is the next best thing.

joshwaxman said...

interesting point. (though I do have a post where I argue that an eye for an eye does mean kofer, on a peshat level.) Also, there was an idea, I think in a JQR, that kapah actually meant her clitoris, giving as basis the angel hurting Yaakov...


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