(כב) וְכִֽי־יִנָּצ֣וּ אֲנָשִׁ֗ים וְנָ֨גְפ֜וּ אִשָּׁ֤ה הָרָה֙ וְיָצְא֣וּ יְלָדֶ֔יהָ וְלֹ֥א יִהְיֶ֖ה אָס֑וֹן עָנ֣וֹשׁ יֵעָנֵ֗שׁ כַּֽאֲשֶׁ֨ר יָשִׁ֤ית עָלָיו֙ בַּ֣עַל הָֽאִשָּׁ֔ה וְנָתַ֖ן בִּפְלִלִֽים׃ (כג) וְאִם־אָס֖וֹן יִהְיֶ֑ה וְנָתַתָּ֥ה נֶ֖פֶשׁ תַּ֥חַת נָֽפֶשׁ׃ (כד) עַ֚יִן תַּ֣חַת עַ֔יִן שֵׁ֖ן תַּ֣חַת שֵׁ֑ן יָ֚ד תַּ֣חַת יָ֔ד רֶ֖גֶל תַּ֥חַת רָֽגֶל׃ (כה) כְּוִיָּה֙ תַּ֣חַת כְּוִיָּ֔ה פֶּ֖צַע תַּ֣חַת פָּ֑צַע חַבּוּרָ֕ה תַּ֖חַת חַבּוּרָֽה׃ {ס}
(1) (22) When [two or more] parties 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, 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.
(יח) וְכִֽי־יְרִיבֻ֣ן אֲנָשִׁ֔ים וְהִכָּה־אִישׁ֙ אֶת־רֵעֵ֔הוּ בְּאֶ֖בֶן א֣וֹ בְאֶגְרֹ֑ף וְלֹ֥א יָמ֖וּת וְנָפַ֥ל לְמִשְׁכָּֽב׃ (יט) אִם־יָק֞וּם וְהִתְהַלֵּ֥ךְ בַּח֛וּץ עַל־מִשְׁעַנְתּ֖וֹ וְנִקָּ֣ה הַמַּכֶּ֑ה רַ֥ק שִׁבְתּ֛וֹ יִתֵּ֖ן וְרַפֹּ֥א יְרַפֵּֽא׃ {ס}
(18) When [two] parties quarrel and one strikes the other with stone or fist, and the victim does not die but has to take to bed: (19) if that victim then gets up and walks outdoors upon a staff, the assailant shall go unpunished—except for paying for the idleness and the cure.
עַיִן תַּחַת עַיִן" is understood literally.
"רַק שִׁבְתּוֹ יִתֵּן וְרַפֹּא יְרַפֵּא" - This approach can maintain that, in addition to being punished by losing his eye, the assailant must also compensate his victim for his medical expenses and loss of salary
Monetary Compensation"עַיִן תַּחַת עַיִן" is interpreted metaphorically, and monetary compensation is given for the exact value of the limb lost.
Meaning of the metaphor – The formulation of "עַיִן תַּחַת עַיִן" comes to teach that the assailant must make the victim whole again by compensating him in full for all aspects of his injury
Judicial theory – This approach views the primary purpose of justice to be restitution. R. Yehuda HaLevi and R"Y Bekhor Shor emphasize that harming the perpetrator serves no purpose for his victim, who will be much better served if he is compensat
Two Tracks - Torah law reflects the validity of both the literal and metaphorical interpretations. There are a number of variations of this approach:
Determining factors – This group of commentators present a number of different possibilities:
- Victim's choice – Josephus states that the victim is given the option of deciding whether to accept money instead.
- Perpetrator's choice – Ibn Ezra says that the perpetrator can choose whether to pay ransom for his limb.
- Court's choice – Shadal suggests that the Torah left the decision to the discretion of the judges,23 in order to prevent a situation where a wealthy person can maim as he pleases as
he would only need to pay compensation. - Permanent or non-permanent injury – Ramban offers the possibility that permanent loss of limbs would be punished by talion, while non-permanent injuries would be compensated financially.
Evolving Society
The literal interpretation of the verse was its intended meaning for the generation of the Exodus, but the metaphorical understanding is its import for future generations.
Morality – The Hoil Moshe explains that the uncivilized society of former slaves required a harsh penal code, as monetary punishments would not have sufficed to deter people from committing assault.
Ideal vs. Reality
The Torah's formulation conveys that the perpetrator truly deserves to lose a limb, even though this is not the punishment which is actually implemented.
Judicial theory and implementation – Sforno explains that while strict justice would require measure for measure retribution, practical concerns prevent its implementation.