(22) When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him, the payment to be based on reckoning. (23) But if other damage ensues, the penalty shall be life for life, (24) eye for eye, tooth for tooth, hand for hand, foot for foot, (25) burn for burn, wound for wound, bruise for bruise. (26) When a man strikes the eye of his slave, male or female, and destroys it, he shall let him go free on account of his eye. (27) If he knocks out the tooth of his slave, male or female, he shall let him go free on account of his tooth.
(א) עין תחת עין. סִמָּא עֵין חֲבֵרוֹ נוֹתֵן לוֹ דְּמֵי עֵינוֹ כַּמָּה שֶׁפָּחֲתוּ דָּמָיו לִמְכּוֹר בַּשּׁוּק, וְכֵן כֻּלָּם; וְלֹא נְטִילַת אֵבֶר מַמָּשׁ, כְּמוֹ שֶׁדָּרְשׁוּ רַבּוֹתֵינוּ בְּפֶרֶק הַחוֹבֵל (דף פ"ג):
(1) עין תחת עין EYE FOR EYE — If one blinded the eye of his fellow-man he has to pay him the value of his eye, i. e. he pays him how much his value would be diminished if he were to be sold as a slave in the market. In the same way all other cases are to be dealt with, but it does not mean the actual cutting off of the offender’s limb — just as our Rabbis have explained in the chapter beginning with the word החובל (Bava Kamma 84a).
דתניא רבי אומר (שמות כא, כג) נפש תחת נפש ממון אתה אומר ממון או אינו אלא נפש ממש נאמרה נתינה למטה ונאמרה נתינה למעלה מה להלן ממון אף כאן ממון:
The Gemara elaborates. As it is taught in a baraita that Rabbi Yehuda HaNasi says: “But if any harm follow, then you shall give life for life” (Exodus 21:23). This verse is referring to a payment of money. Do you say money, or perhaps it is solely an actual life that is demanded? The term giving is stated below: “You shall give life for life,” and giving is stated above, in the previous verse: “And he shall give as the judges determine” (Exodus 21:22). Just as there, the giving is in the form of money, so too here, it is referring to a payment of money. Although this halakha is not explicit in the Torah, the verses lend support to it.
(17) If anyone kills any human being, he shall be put to death. (18) One who kills a beast shall make restitution for it: life for life. (19) If anyone maims his fellow, as he has done so shall it be done to him: (20) fracture for fracture, eye for eye, tooth for tooth. The injury he inflicted on another shall be inflicted on him. (21) One who kills a beast shall make restitution for it; but one who kills a human being shall be put to death. (22) You shall have one standard for stranger and citizen alike: for I the LORD am your God.
(1) In addition, Sa‘adya Gaon has brought numerous other proofs, from simple common sense, that Scripture could not mean a fracture for a fracture literally. For example, since the original wound was not precisely calculated, how could one duplicate it exactly? If not, and if the wound is in a sensitive area, one might kill the guilty party inadvertently! If someone removed one-third, say, of another person’s eyelid, how could one possibly give the guilty party precisely that wound? Accordingly, the words of the tradition [Bava Qama 83b] must be correct. The true explanation in all these cases is that the guilty party deserves to lose an eye, but instead, he pays its monetary equivalent. If people should ask, “what if the guilty party is poor?” we answer that the law deals with the cases that are likely to occur. Besides, we can throw the question back at the questioners: What if the guilty party is blind?
(מז) (מז) אָמַר הֶחָבֵר: וַהֲלֹא נֶאֱמַר בּוֹ אַחַר כֵּן: 'וּמַכֵּה נֶפֶשׁ־בְּהֵמָה יְשַׁלְּמֶנָּה נֶפֶשׁ תַּחַת נָפֶשׁ', הֲלֹא זֶה הַכֹּפֶר, וַהֲלֹא לֹא הָיָה אוֹמֵר: מִי שֶׁהִכָּה סוּסְךָ – הַכֵּה סוּסוֹ, אֲבָל אוֹמֵר: קַח סוּסוֹ, כִּי אֵין לְךָ תּוֹעֶלֶת בְּהַכּוֹת סוּסוֹ, וְכֵן מִי שֶׁכָּרַת יָדְךָ אֵין אוֹמְרִים לְךָ: קַח יָדוֹ, כִּי אֵין לְךָ תוֹעֶלֶת בִּכְרֹת אֶת יָדוֹ. כָּל שֶׁכֵּן שֶׁהָיָה נִכְנָס בַּדִּינִין הָאֵלֶּה מַה שֶּׁסּוֹתֵר אוֹתוֹ הַשֵּׂכֶל, מִ'פֶּצַע תַּחַת פָּצַע' וְ'חַבּוּרָה תַּחַת חַבּוּרָה', אֵיךְ נוּכַל לְשַׁעֵר זֶה, שֶׁמָּא יָמוּת אֶחָד מֵהֶם מִפֶּצַע וְלֹא יָמוּת הָאַחֵר מִכְּמוֹתוֹ, וְאֵיךְ נוּכַל לְשַׁעֵר כְּמוֹתוֹ, וְאֵיךְ נִקַּח עֵין מִי שֶׁאֵין לוֹ אֶלָּא עַיִן אַחַת כֹּפֶר עֵין מִי שֶׁיֵּשׁ לוֹ שְׁתֵּי עֵינַיִם, וְיִשָּׁאֵר הָאֶחָד סוֹמֵא וְהַשֵּׁנִי בְעַיִן אַחַת, וְהַתּוֹרָה אָמְרָה: 'כַּאֲשֶׁר יִתֵּן מוּם בָּאָדָם כֵּן יִנָּתֶן בּוֹ'. וּמַה צָּרְכִּי לְדַבֵּר עִמְּךָ עַל אֵלֶּה הַחֲלָקִים, אַחֲרֵי אֲשֶׁר הִקְדַּמְתִּי לְךָ צֹרֶךְ הַקַּבָּלָה עִם אֲמִתַּת הַמְקֻבָּל מֵהֶם וּגְדֻלָּתָם וְחָכְמָתָם וְהִשְׁתַּדְּלוּתָם.
(47) 47. The Rabbi: And is it not said immediately afterwards: 'And he that killeth a beast shall make it good, life for life'? (Leviticus 24:18-21). Is this not the principle of ransom? It is not said: 'If anyone kills thy horse, kill his horse,' but 'take his horse, for what use is it to thee to kill his horse?' Likewise: If anyone has cut off thy hand, take the value of his hand; for cutting off his hand profits thee not. The sentence: 'Wound for wound and stripe for stripe' (Exodus 21:25), embodies ideas antagonistic to common sense. How can we determine such a thing? One person may die from a wound, whilst another person may recover from the same. How can we gauge whether it is the same? How can we take away the eye of a one-eyed person in order to do justice to a person with two eyes, when the former would be totally blind, the latter still have one eye? The Tōrāh teaches: As he hath caused a blemish in man, so shall be done to him. What further need is there to discuss these details, when we have just set forth the necessity of tradition, the truthfulness, loftiness, and religious zeal of traditionists?
(ח) הג"ה. [וּלְהֶפֶךְ מִי שֶׁמְּדַבֵּר רַע עַל חֲבֵרוֹ וּמְגַנֶּה אוֹתוֹ, יְסֻבְּבוּ הַדְּבָרִים לְבַסּוֹף, שֶׁיְּגַנּוּ אוֹתוֹ גַּם כֵּן, לְבַד עָנְשׁוֹ שֶׁבָּעוֹלָם הַבָּא, וְכֵן רָאִיתִי כָּתוּב בְּשֵׁם הַקַדְמוֹנִים וְנָתְנוּ רֶמֶז עַל זֶה (ויקרא כ"ד ב'): "כַּאֲשֶׁר יִתֵּן מוּם בָּאָדָם כֵּן יִנָּתֶן בּוֹ". וְיוֹתֵר מִזֶּה, שֶׁאֲפִלּוּ בְּעֵינֵי הָאָדָם עַצְמוֹ, שֶׁהוּא מְסַפֵּר לְפָנָיו הַלָּשׁוֹן הָרָע וְהָרְכִילוּת נִתְעָב וְנֶאֱלָח, כְּמַאֲמָרָם זַ"ל (סנהדדין כ"ט.) סַהְדֵּי שַׁקְרֵי אַאוֹגְרֵייהוּ זִלֵּי (עדי השקר גם בעיני שוכריהם מתבזים). גַּם כָּל אֶחָד מֵהַשּׁוֹמְעִים חוֹשְׁדִים אוֹתוֹ לֵאמֹר: עַתָּה סִפֵּר עַל חֲבֵרַי לְפָנַי וְעַתָּה יֵלֵךְ וִיסַפֵּר לִפְנֵי חֲבֵרַי עָלַי].
(8) And, the converse — If one speaks evil of his friend and demeans him things will come to such a pass that they will demean him, too, aside from his punishment in the world to come. And thus have I seen it written in the name of the early authorities, and they have found an intimation [in Scripture] for this (viz. Vayikra 24:20): "As he imputes a blemish to a man, so shall it be imputed to him." And, more than this, he comes to be despised and reviled even in the eyes of those to whom he spoke the lashon hara and the rechiluth. As Chazal have said: "False witnesses are despised [even] by their hirers." Also, each one of the listeners suspects him, saying to himself; "Now he spoke against my friends before me; and now he will go and speak before my friends against me."
And with regard to that mishna, the Gemara asks: Let us say, on the contrary, that anyone who is flogged does not pay. Rabbi Ile’a said: The Torah explicitly amplified the case of conspiring witnesses for payment, not lashes. The Gemara asks: Where did the Torah amplify the case of conspiring witnesses? The Gemara explains: Now, since it states with regard to conspiring witnesses: “And you shall do unto him as he conspired to do unto his brother” (Deuteronomy 19:19); why do I require the Torah to state in his punishment: “A hand for a hand” (Deuteronomy 19:21)? This indicates that the punishment that takes precedence is one in which there is an item that is given from hand to hand, and what is that item? It is money.
Fiddler on the Roof
Villager: An eye for an eye, and a tooth for a tooth.
Tevye: Very good. That way the whole world will be blind and toothless.
The Rabbis took "an eye for an eye" and found a logical way to change that to (as Rabbi Howard Goldsmith taught on his source sheet #99271) "an eye for a shekel." But is there a way to progress even further beyond that? A way to move beyond both violence and money? Yes, and here are some sources that helped me find that.
Sapphire from the Land of Israel: A New Light on the Weekly Torah Portion from the Writings of Rabbi Abraham Isaac HaKohen Kook by Rabbi Chanan Morrison
The Kabbalists compared the Written Torah to a father and the Oral Torah to a mother. When parents discover their son has committed a very grave offense, how do they react? The father immediately raises his hand to punish his son. But the mother, full of compassion, rushes to stop his raised arm. “Please, not in anger!” she pleads, and she convinces the father to mete out a lighter punishment. An onlooker might feel that all this drama and conflict is superfluous. In the end, the child did not receive corporal punishment; why make a big show of it? In fact, the scene had great educational value for the errant son. Even though he was only lightly disciplined, the son was made to understand that his actions deserved a much more severe punishment. This idea also holds true for one who injures another. Such an individual needs to realize the gravity of his actions. In practice, we can only make him pay monetary restitution, as the Oral Law rules. But he should not think that money alone can rectify what he has done.
Rabbi Avraham Yoel Abelson, Knesset Chakhmei Yisrael (translated)
If the holy Torah had written a sentence like “One who blinds another person must pay money as a punishment,” cruelty would have increased. Powerful, wealthy people would have blinded the poor with impunity, happily paying the damages from their deep pockets. After all, why would [the super-rich, the one percent] care about paying the shekels instructed by a judge? And anyone who provoked the ire of such a powerful person would have ended up disabled.
The holy Torah was concerned about this, so it presented a sentence that would apply across the board to both rich and poor: “If someone blinds another person and the like, what he did will be done to him!” Now everyone who is poor and downtrodden could be assured of keeping his body intact. After all, a rich person has lots of money, but not lots of eyes and arms. He will be afraid of hurting anyone, because if he casually disables some poor child, he too might end up disabled for life. The Torah doesn’t distinguish between the super-rich and the super-poor; the law is the same.
Here the Torah made a fence to protect the poor from the powerful and tyrannical. In contrast, if it happens that one person blinds another, whether in a fight or an accident, God gave Moshe the rule in the holy Torah that the person should pay money. With this, the Torah fixed two things: [the Written Torah] set up a fence against the corrupt and powerful, and the Oral Torah made it unlikely that anyone will seek revenge. A beit din can instruct that money must be paid, assuming it is a place where there is no concern that the powerful will get out of hand.
But if it is a place where there is such a concern, then as a fence the Torah law is that the beit din should apply what is written [and do “an eye for an eye” literally]! As Tosafot wrote [regarding a rabbi who had someone’s hand cut off], this is indeed Torah law. [I think that Tosafot’s source is] not an oral tradition, but the written verse of “an eye for an eye.” From here we see that the Written and Oral Torah are one. They cannot exist without each other, like body and soul.
וְכֵן הַחוֹבֵל בַּחֲבֵרוֹ וְהַמַּזִּיק מָמוֹנוֹ אַף עַל פִּי שֶׁשִּׁלֵּם לוֹ מַה שֶּׁהוּא חַיָּב לוֹ אֵינוֹ מִתְכַּפֵּר עַד שֶׁיִּתְוַדֶּה וְיָשׁוּב מִלַּעֲשׂוֹת כָּזֶה לְעוֹלָם ...
...Even he, who injures his friend or causes him damages in money matters, although he makes restitution of what he owes him, finds no atonement, unless he makes verbal confession and repents by obligating himself never to repeat this again...
(ז) אַף עַל פִּי שֶׁהוּא נוֹתֵן לוֹ, אֵין נִמְחָל לוֹ עַד שֶׁיְּבַקֵּשׁ מִמֶּנּוּ...
(7) Even when he gives him [the payment], he will not be forgiven until he seeks it [pardon] from him...