Monday, September 15, 2008

Cutting off her hand??

It is shocking. The Torah is supposed to be a moral document, yet it appears to endorse cutting off the hand of a woman for the mere offense of touching a man's testicles while in a brawl, such as to cause him embarrassment.

Yet that view is one which adopts Chazal's view of the offense and a literal view of the penalty. Chazal are the ones who say this is punishment for embarrassment (though they may also quite likely hold there was physical damage as well), and they are the same ones who say that the punishment is monetary compensation.

When we go literal, it is more than possible that the offense was crushing his testicles, thus depriving him of his ability to have children, his ability to pass on his inheritance and his name, and depriving him from being able to marry into the kahal Hashem. Indeed, I would point out there it follows directly after yibbum vs. chalitza in the parsha. Also, such greivous injury can cause death. In comparing to Ancient Near Eastern codes, we see in the code of Hanmurabi that if she crushes one testicle, she loses a finger, but if she crushes both, she is blinded in both eyes.

On a literal level, is the punishment truly so brutal when compared with the crime? Not that I am endorsing it. But Lorena Bobbit made headlines for something similar. And the Torah was given within the values of the time, such that it details reforms within the institution of slavery, for the protection of the slaves, yet keeps the institution. If in general the Torah replaces an eye for an eye with money via the ability to pay kofer (an expansion on this idea later), if here, for such a brutal crime, kofer is disallowed, perhaps as an extreme yet mostly theoretical measure so that no woman would come to do this, is it really so brutal and immoral?

And if later general society has moved past this in the general case, and has devised other suitable punishments and preventative measures, and where there is an evolving morality, would an option not to enforce this mandate in a different cultural setting really be a betrayal of what the Torah already sets out to do? I don't think so. And if the phrasing of the pasuk also lets us derive other derashot, so be it.

In a topic such as this, it is interesting to see what the Karaites have to say for themselves. For they are very frum, in considering this Torat Moshe, mipi hagevurah, yet at the same time taking it literally. To us Perushim, the ethical dilemma need not cause a crisis of faith, since we are used to taking this pasuk non-literally, in accordance with Chazal's interpretation (or rather, interpretations). But what will the Karaites do?

We could find the answers in the writings of the Karaite scholar Aharon ben Yosef, and in the super-commentary upon him, in this book from JNUL, pages 243-244. (Aharon ben Yosef above, supercommentary below.)

As far as I can make out, mevushav is a euphemism for his testicles. And your eye not sparing means that in this case, you do not take kofer. The interesting implication is that in other cases, one would take kofer. Thus, an eye for an eye means money, since people will pay the fine rather than lose their eye. Further, he seems to consider this different from the other maimings, which suggests that he indeed sees this as crushing his testicles. (Though the supercommentary may not realize this.) Why not treat it like other maimings? For she did such a grievous act and great sin to cast forth her hand in the private place. And otherwise we would think {?} that she could redeem her hand with kofer.

So they hold there is actual cutting off of the hand, but give reasons to justify why this is a reasonable punishment.

Ibn Ezra (who was earlier than Aharon ben Yosef) also interpret this pasuk similarly, yet restricts when to impose the hand-cutting even further:
כי ינצו -
הפך כי ישבו אחים יחדו ואלה האנשים זרים, או אחים.

במבושיו -
ביציו, מגזרת בושה והוא עזות מצח, לגלות דבר הנסתר שהוא ערוה, גם הוא מקום מסוכן.

[כה, יב]
וקצותה את כפה -
כמו: עין תחת עין אם לא תפדה, כפה תקוץ.

לא תחוס עינך -
אם היתה ענייה.
Thus, he does not seem to say explicitly that the testicles were crushed, though he does say it is a makom mesukan. Yet there is kofer even here, just like other "eye for an eye" cases. But the "eye shall not spare" would seem to be where she is poor and cannot afford kofer -- then, one would actually cut off her hand. (I could imagine then halachic workarounds in which she accepts it upon herself as a chov, such that the kofer is halachically and officially paid off, but then there is a debt.)

Shadal endorses the idea I mentioned in another post, that she is still grabbed on, and there is danger to life, such that any passerby should chop off her hand, rather than killing her, as she has the din rodef. But then he later reverses himself and suggests something like Ibn Ezra, that this is imposed by the court, as an ayin tachat ayin, as she has no testicles, such that the hand would take the place of the testicles. (I would suggest that since one could not do a literal ayin tachat ayin, one could look instead to the offending limb, which was the hand she stretched forth.) And in connecting it to ayin tachat ayin, Shadal seems also to be enabling kofer, for he maintains there that kofer is allowed by limbs, something provable from the fact that the Torah excludes specifically taking kofer for taking a nefesh. See inside. Anyway, here is the local Shadal.

יב ] וקצתה : מצוה על כל מי שנמצא שם ורואה האיש ההוא בסכנה , והלא היא עצמה להציל את בעלה עשתה , ולמה לא יותר לה להצילו כדרך שמותר וגם מצווה לאחרים להציל את המכה מיד ? - היא עשתה ברמייה כי אין אדם שיחשוב כזאת על אשה , שתעיז פניה כל כך , ואם היתה עושה בשאר דרכים ובלא רמייה , לא היה בזה רע . וגם תנא קמא בספרי ( כי תצא פיסקא רצ " ג ) לקח הדבר כפשוטו ולא בממון , אמנם שתשלם דמי כפה לא נהירא , ויותר היה ראוי שתשלם דמי מבושיו , ואם מת בה , תהיה חייבת מיתה . אבל אם הפחידוה ושמטה ידה , ייתכן , שתשלם דמי כפה שהיתה ראויה להיקצץ . והנה אחר שדיבר על מעשה רמייה זה , הזכיר רמייה אחרת שהיא אבן ואבן איפה ואיפה , ולחזק שנאת הרמייה הזכיר ענין עמלק , שעשה בעקבה ויזנב בך כל הנחשלים אחריך , וציוה להכריתו ולזכור המשפט הנעשה בו , וזה למען נתרחק ממעשה רמייה . והיום י' שבט תר"ב נ"ל כי " וקצתה את כפה " הוא עונש ב"ד , על דרך ( שמות כ"א כ"ז ) עין תחת עין , ולפי שאין לאשה מבושים יקצצו כפה , וקרובין לזה דברי ראב"ע.

Note: Not intended halacha lemaaseh. Heh. But also not as a final word as to the intent of the pesukim, or the theological implications of different meanings of these pesukim.

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