Tuesday, May 17, 2005

Emor: An "Eye" for an Eye

Towards to end of parshat Emor, we have a section that deals with the idea of "an eye for an eye." Chazal to not understand this to mean literally an eye, but rather, monetary payment. I think this is true on the level of pshat, and have written about this before, on parshat Mishpatim, in some detail, in terms of the "eye for an eye" as it applies to the woman who miscarries. But the segment occurs here as well, and an analysis here should also prove useful. The segment, in Vayikra 24:17-21:

יז וְאִישׁ, כִּי יַכֶּה כָּל-נֶפֶשׁ אָדָם--מוֹת, יוּמָת. 17 And he that smiteth any man mortally shall surely be put to death.
יח וּמַכֵּה נֶפֶשׁ-בְּהֵמָה, יְשַׁלְּמֶנָּה--נֶפֶשׁ, תַּחַת נָפֶשׁ. 18 And he that smiteth a beast mortally shall make it good: life for life.
יט וְאִישׁ, כִּי-יִתֵּן מוּם בַּעֲמִיתוֹ--כַּאֲשֶׁר עָשָׂה, כֵּן יֵעָשֶׂה לּוֹ. 19 And if a man maim his neighbour; as he hath done, so shall it be done to him:
כ שֶׁבֶר, תַּחַת שֶׁבֶר, עַיִן תַּחַת עַיִן, שֵׁן תַּחַת שֵׁן--כַּאֲשֶׁר יִתֵּן מוּם בָּאָדָם, כֵּן יִנָּתֶן בּוֹ. 20 breach for breach, eye for eye, tooth for tooth; as he hath maimed a man, so shall it be rendered unto him.
כא וּמַכֵּה בְהֵמָה, יְשַׁלְּמֶנָּה; וּמַכֵּה אָדָם, יוּמָת. 21 And he that killeth a beast shall make it good; and he that killeth a man shall be put to death.

Look first at the verses marked in red. I believe they are quite telling. Specifically, verse 21 repeats the message of verses 17 and 18. Why should they repeat?

Verse 21 does not so much repeat as bracket the two verses (19 and 20) in the center. One might argue that it is the phrase נֶפֶשׁ תַּחַת נָפֶשׁ - "life for life" - that sparked the digression, but I think it is in fact more than that.

First, note here that even נֶפֶשׁ תַּחַת נָפֶשׁ does not seem to mean an actual life in this instance. The word preceding the phrase is יְשַׁלְּמֶנָּה, "he shall pay." This does not mean forfeiture of the killer of the animal's life, for we see again in verse 21- וּמַכֵּה בְהֵמָה, יְשַׁלְּמֶנָּה; וּמַכֵּה אָדָם, יוּמָת - he that killeth a beast shall pay for it; and he that killeth a man shall be put to death. So we have here a very strange, at first glance, use of the phrase "life for life." Here, it seems to mean monetary payment. Unless one claims that the "life for a life" is only going on the preceding verse, about one who kills a man, which is certainly plausible.

Second, note the contrast of killing a man vs. killing an animal. It is a contrast made twice in this segment - first in verses 17 and 18, and then in verse 21. What is the purpose of the contrast?

In other law codes (for example, in Anglo-Saxon or Germanic law), one might in fact see monetary payment made for killing a human. That is, if you killed someone, his family might come to avenge his blood. To prevent a blood-feud, with each family killing the other in turn, they had the institution of wergild, literally meaning "man payment."

There were similar laws in the Ancient Near East as well.

In the Torah as well, we see the idea of kofer, in which the owner of an animal who kills a human must pay money instead of (theoretical) forfeiture of his own life. See Shemot 21:29-30, and the context in the surrounding psukim:

כט וְאִם שׁוֹר נַגָּח הוּא מִתְּמֹל שִׁלְשֹׁם, וְהוּעַד בִּבְעָלָיו וְלֹא יִשְׁמְרֶנּוּ, וְהֵמִית אִישׁ, אוֹ אִשָּׁה--הַשּׁוֹר, יִסָּקֵל, וְגַם-בְּעָלָיו, יוּמָת. 29 But if the ox was wont to gore in time past, and warning hath been given to its owner, and he hath not kept it in, but it hath killed a man or a woman; the ox shall be stoned, and its owner also shall be put to death.
ל אִם-כֹּפֶר, יוּשַׁת עָלָיו--וְנָתַן פִּדְיֹן נַפְשׁוֹ, כְּכֹל אֲשֶׁר-יוּשַׁת עָלָיו. 30 If there be laid on him a ransom, then he shall give for the redemption of his life whatsoever is laid upon him.

Here, in Vayikra, we are seeing the rejection of this idea of paying kofer - a ransom - for a deliberate murder. If you kill a cow, you pay money. If you deliberately kill a man, you pay with your life.

One could imagine the restriction is going the other way as well. Say someone kills an animal belonging to an important person. One might imagine the punishment would be death. Indeed, in Robin Hood, killing one of the king's deer was a crime punishable by death. Here we see that the punishment for killing a man is death, and the punishment for killing an animal is monetary payment to compensate the owner for his loss.

That is, the punishment should fit the crime. For more serious crimes, one gets death. For less serious crimes, one gets less of a punishment, possibly a fine or a requirement to repay the person you have damaged.

The reason verses 17, 18, and 21 bracket the middle section is that the middle section is commenting on verses 17, 18 and 21. The middle verses tell the motivation behind verses 17, 18, and 21. The whole point of 17 vs. 18 is proportional punishment. The middle verses cite as a metaphor parallel Ancient Near East law.

In ANE law, one could expect to lose an eye for an eye. If a person punched a woman and caused her to miscarry, we would expect that his wife would be caused to miscarry (as opposed to monetary payment set by the husband, as we see is the case in Mishpatim - again, follow the link to my post above). If a builder built a shoddy house and the house-owner died, the builder would be put to death. If the shoddy house caused the death of the owner's son, the owner's son would be put to death.

This is not what is happening here. Rather, the Torah is telling that punishment is proportional with the severity of the injury - an "eye" for an eye, but not a life for an eye. A life for a life, but not an "eye" for a life. Since killing an animal is less severe, the payment is money, rather than loss of life. Under strict "eye for an eye" we would expect the killer of the cow's own cow to be killed. Instead he pays money.

In all the cases listed, Chazal understand that is means "the monetary value of an eye" for an eye, etc. I would claim these cases are not even being discussed here, but the principle is being cited in order to explain the difference between the law of the killer of the human and the cow. In fact, if one wanted to know what the punishment would be in these cases, since they do not involve actual loss of human life, it is entirely possible that a monetary payment would be appropriate.

Indeed, looking again to parshat Mishpatim, in the psukim in the area of that "eye for an eye" statement, we have the following law (Shemot 21:18-19):

יח וְכִי-יְרִיבֻן אֲנָשִׁים--וְהִכָּה-אִישׁ אֶת-רֵעֵהוּ, בְּאֶבֶן אוֹ בְאֶגְרֹף; וְלֹא יָמוּת, וְנָפַל לְמִשְׁכָּב. 18 And if men contend, and one smite the other with a stone, or with his fist, and he die not, but keep his bed;
יט אִם-יָקוּם וְהִתְהַלֵּךְ בַּחוּץ, עַל-מִשְׁעַנְתּוֹ--וְנִקָּה הַמַּכֶּה: רַק שִׁבְתּוֹ יִתֵּן, וְרַפֹּא יְרַפֵּא.
19 if he rise again, and walk abroad upon his staff, then shall he that smote him be quit; only he shall pay for the loss of his time, and shall cause him to be thoroughly healed.
That is, we do not beat up the injurer so that he also has a loss of time and must be healed, but we cause him to pay for the person's loss of income, and have him pay for the doctor so that the person is healed. This in the context of an eye for an eye!

The reason, once again, is that he did not actually kill someone, and so death is not appropriate. A lesser punishment is appropriate, and this is to make good the other person's loss via a monetary payment. This sense of proportion can be called "an eye for an eye" rather than "a life for an eye."

Now, it is further possible to understand the statement in verse 19 that "as he hath maimed [given an injury] a man, so shall it be rendered unto him" in other ways such as "so shall he [the injurer] give to him [the injuree]," or "so shall be given to him" in a metaphorical way, that is, the punishment shall be rendered in accordance with the severity of the crime. However, I would say the whole section is metaphorical, and is given definition to the contrast between killing a man and killing an animal, the laws which frame it on both ends.

I would also suggest that the reason this section is embedded in the law of the blasphemer is that, as we read earlier in the perek, Moshe was not sure what a fitting punishment was for this crime. Hashem responds by stating the appropriate punishment, and that blaspheming God is one of the more serious crimes, akin to killing a human, and not akin to, say, killing an animal. As a result, the fitting punishment for such a heinous crime is death by stoning, again, under the concept of "a life for a life and an eye for an eye" - punishment should match the severity of the crime.


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