Mishpatim 5764
And if any mischief follows, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for a foot, burning for burning, wound for wound, striping for striping (Shemos 21, 22-25, JPS translation)
Certain verses have been sources of contention and disagreement since earliest times. Among these one must count the one requiring eye for an eye, found in this week’s parsha. Countless bottles of ink have been spilt in religious polemics that revolve around the meaning and significance of this expression.
As is well known, the Oral Law interprets this verse as demanding payment of a value of an eye for causing loss of an eye. This seems the only rational way to formulate the law. As R. Saadia Gaon pointed out (see Ibn Ezra), one can never be sure that taking out one eye would not lead to a serious illness, thus causing more injury to the guilty party than he deserves. Can one equate the loss of an eye of a man with one eye to that of a man with two eyes? How would this sentence be carried out in a case of mass murderer?
The non-literal reading solves the logical and ethical problem but creates several others. First, it opens us to charges of falsifying of the simple meaning of Scriptures, for, this interpretation does not appear to be the simple meaning of eye for an eye. You might say that we follow the Oral Law; however, taking refuge in the reliance on Oral Law begs the question of what the intent of the Written Law itself then may be in this passage?
Can our approach to Midrash throw new light upon this old problem?
We begin by looking at the passage and ask what kind of a problem it is attempting to solve. Of the 6 types of Midrashic concerns (see the Introduction on the web site, aishdas.org/midrash), only two possibilities appear to pertain here - uncertainty and difficulty. The latter would theological or logical. The Midrash that we are about to see, however, does not appear to be concerned with these difficulties. Instead, it seems to be dealing with a bona-fide uncertainty of a pair of apparently equally plausible readings. In such cases, the midrash will resort to the method of comparative reading, gathering and collating cognate expressions and usages from all over Tanach to determine the correct meaning. In this way it tries to determine the actual meaning of the verse; this is not an apologetic attempt to make it say what the Oral Law claims that it says. We will start with the final result and then see how we arrived at it.
When men fight and they hurt a pregnant woman and her children came out, if there was no fatality, (the perpetrator) shall be fined: when the husband sets a claim against him, he pays according to the judges.
If there is a fatality, you shall pay with an entity in exchange of an entity,
Eye in exchange of an eye,
Tooth in exchange of a tooth,
Hand in exchange of a hand,
Foot in exchange of a foot,
Burn in exchange of a burn,
Open wound in exchange of an open wound,
Closed wound in exchange of a closed wound.
Comparison of the two translations reveals that they differ primarily in understanding the word nasan (pay versus give) and tachas (in exchange instead of for[1]). This is a crucial difference. Translated thusly, the passage requires compensation rather than actual eye for an eye.
One must keep in mind that Hebrew language, unlike the European languages with which we familiar and in which we converse and think, does not employ a separate word for every concept or thing. Instead, it tends to use families of words that share same roots and it determines meaning largely by the surrounding context. The same word can carry different meanings based on its context and the pattern of use in other passages. The Midrash will focus specifically of exploring the meaning of these two terms as they are used in other passages.
And you shall nasan entity (nefesh) for entity. He pays entity and he does not pay money for an entity[2].
This establishes that nasan means pay and anticipates the discussion to come.
Eye tachas eye. You say that this means money or really an eye.
The Mekhilta sets up an uncertainty, two possible interpretations. It will now look to determine which one is correct.
Rabbi Eliezer used to say: (Vayikra 24): and he who strikes an animal will pay it up (compensate with it) and he who strikes man shall be killed. The verse made a hekesh (connection) between damages to an animal and damages to a person. Just like damages to an animal results in monetary payment so damages to a man result in monetary payment[3].
To appreciate R. Eliezers’s argument we need to read verses 18 -21 from Vayikra together while paying special attention to the implications for the meaning of tachas.
And he who kills a beast shall pay ( the word used here is not nasan but shlm which unambiguously means pay) , beast tachas beast. And if a man causes blemish in his neighbor; as he did, so shall be done in his case. Break tachas break, eye tachas eye, tooth tachas tooth, as he placed a blemish in his neighbor, so (subject missing) shall be placed in him[4]. And he who strikes an animal shall pay and he who strikes a man shall die.
The verses from Vayikra use the actual word for pay, shalem, and amplify the expression eye for an eye with the words- as he placed a blemish in man so (subject missing) shall be done to him. It is relevant that the word used here is adam, departing from the usual term ish. The former is better translated as human whereas the latter signifies individual. That suggests that this verse is a value statement or a general rule rather than a specific law. In addition, there is no subject in this sentence. We are told that something shall be placed on him- but what is it? Is it a blemish or a sum of money? In itself, it is quite common for the Torah to skip a subject in a sentence. It falls to us then to fill in the missing subject.
The context suggests that the word nasan in our parasha means the same thing as shalem used in Vayikra. This evidence tilts the interpreter to a more nuanced reading. It is clear that careful reading of the Vayikra passage supports the translation of nasan as pay and of tachas as in exchange of. It directly leads us to the conclusion that what the Oral Law claims that these verses mean is in actuality what they mean[5].
This midrash illustrates the inspired ability of the Chazal to closely read apparently simple texts. Their sensitivity to idiomatic expressions, secondary meaning of words, textual juxtapositions and contextual clues allowed them to unearth the deeper meaning of the Written Law. The key to realizing that they are engaging in this kind of reading is the expression you say it is so or may be it is so. This structure is very common in Tannaitic midrash and clues us to a careful textual analysis that is about to follow.
Good Shabbos,
M. Levin
1 It is significant that Targum Onkelos here switches from his usual translation of tachas as techos to chalaf. The latter means in exchange rather than for as pointed out by C. Y. Kossovsky in his introduction to Otsar Lashon Onkelos. For a complilation of other comments on this targum see Torah Sheleima, Targumim, V. 24, p.73. In the same vein, Onkelos translates nasan as yitein, unlike the usual pattern of using yahv or masar. The word nasan is used in Hebrew, as in other languages (Russian, Spanish etc.), to also signify appoint, set-up, allow, permit etc. In general, Onkelos uses yitein when the meaning is that of placing, appointing, putting, paying, rather than physical act of handing over. Davar is used mostly for taking away or transfer of ownership while masar is used for taking by mutual agreement.
2 The Talmud in Sanhedrin 79 says that this reflects a view that a murderer who intended to kill one individual, in this case, one of the contenders, but wound up killing a bystander, to be guilty of a capital offense.
The Mekhilta continues: Rebbi says …money. You say (it means) money or capital punishment? It says here put a claim and it says later put a claim (verse 30). Just like later is money so here also it means money.
Rebbi holds that that a murderer who intended to kill one individual, in this case, one of the contenders, but wound up unintentionally killing a bystander is liable for compensation and not a death penalty because he did not intend the eventual victim but someone else.
3 Form the parallel passage in the Sifro 259 it is clear that the issue here is comparative reading, not technical application of hekesh. The Sifro passage does not mention hekesh.
4 If nasan means pay, as an outgoing verb, it should always have a subject. See Malbim to Vayikra ibid.
5 I have elected not to discuss the view of R. Yitshak that follows in the Mekhilta, primarily because of space limitations. It is, however, of great importance for later apologetic defenses of the Oral Law as it applies to our case.
