Lex Talionis and the Rabbis
The Talmud reflects an uneasy rabbinic conscience toward the ancient law of talion, “eye for eye, tooth for tooth.”
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The rabbis unanimously declare that all injuries (but not death) inflicted on persons are subject to compensation. How then do they grapple with the law of talion in Leviticus 24:17–20: “If anyone kills any human being, he shall be put to death. One who kills a beast shall make restitution for it: life for life. If anyone maims his fellow, as he has done so shall it be done to him: fracture for fracture, eye for eye, tooth for tooth. The injury he inflicted on another shall be inflicted on him.”
Discussions in the Talmud reflect a troubled rabbinic conscience concerning talion, “an eye for an eye.” In the following quotations, biblical verses are in bold-face and quotations from rabbinic texts called baraita (very early legal arguments and rulings that are contemporaneous with the Mishna, about 200 C.E.) are in italics. These passages are very tightly reasoned arguments that are typical of the Talmud and illustrate why the Talmud is so difficult to study and why an understanding of it is so richly rewarding. The following passage is from Tractate Baba Qama of the Babylonian Talmud:
“Why [monetary compensation]? God said ‘An eye for an eye’ (Exodus 21:24). Why not take this literally?
“Not so, since it has been taught: Is it the case that where he put out his (another’s) eye, we put out his (the offender’s) eye, or where he cut off his arm, we cut off his arm, or where he broke his leg, we break his leg? [Not so, for the] Torah states: One who strikes a human being…but one who strikes an animal…(Leviticus 24:18, 21) [teaching that] just as in the case of striking an animal compensation is to be paid, so in the case of striking a man, compensation is to be paid.
“And should this [source] not satisfy you, note that the Torah states: You may not accept a ransom for the life of a murderer who is guilty of a capital crime; he must be put to death (Numbers 35:31) [teaching that] it is only for the life of a murderer that you may not take ransom, whereas you may take ransom for principal limbs that do not restore themselves.
“To what [two textual instances of] strikes does it (the baraita) refer? Should you say [that it refers] to One who strikes an animal shall make restitution for it, but one who strikes a human being shall be put to death (Leviticus 24:21), this verse refers [not to injury] but to murder. The reference must therefore be to this text: Anyone who strikes a beast shall make restitution for it, life for life (Leviticus 24:18), which is immediately followed by If anyone maims another, as he has done, so shall it be done to him (verse 19). But [the term] strikes is not used [in the latter text]! The baraita is comparing [not the term but the] juxtaposition of striking: Just as the striking mentioned in the case of an animal entails monetary payment, so too does the striking of a man entail monetary payment.
“But surely is it not written If anyone kills a human being, he shall be put to death (verse 17)? This refers to monetary compensation. On what grounds [do you take it to refer] to monetary compensation? Why not say that it really means capital punishment? Not so; first, because it is immediately followed by Anyone who kills an animal shall make restitution for it (verse 18), which refers to monetary payment; and furthermore, because soon after, it is written as he has done so shall it be done to him (verse 19), thus proving that it (so shall it be done) means monetary compensation.”1
The exegetical convolutions exhibited in this exposition, whereby yakkeh “kills” is forced to mean “strike,” though the death penalty is invoked (verse 21) and death in the latter case is forced to mean compensation, betray the rabbis’ unease with talion. This is a true case where “The halakha [rabbinic law] supplants Scripture,”2 or in Rashi’s more vivid metaphor, “The halakha crushes the scriptural text under heel and overthrows it”3—and the rabbis were well aware of it!
Nonetheless, it is hard to believe that strict talion (except for murder) was ever anything but legal theory. It is plainly impossible to execute talion with absolute equality. This is precisely how the rabbis reason:
“R. Simeon b. Yohai [a mid-second-century rabbi in Palestine] says: Eye for eye means monetary compensation. You say monetary compensation, but perhaps it is not so, but actual talion is meant? What then will you say where a blind man put out the eye of another man, or where a cripple cut off the hand of another, or where a lame person broke the leg of another? How can I carry out in this case eye for eye, seeing that the Torah says, You shall have one law (Leviticus 24:22), implying that the manner of law should be the same in all cases?…
“The school of Hizkiah taught: Eye for eye, life for life (Exodus 21:24) but not ‘life and eye for eye.’ Now if you assume that actual talion is meant, it could sometimes happen that while the offender is being blinded, his life might depart from him.”4
The rabbis’ logic is better than their 048exegesis. Nor did they have to wait for Shakespeare’s Portia to concoct their argument. (Portia, you will recall, ruled in The Merchant of Venice that Shylock could have his pound of flesh, but no blood. The irony is that Shylock would have been well aware of the rabbis’ views abrogating talion.)
Talion was not a biblical invention. It must have been the primary experience of jurists (not legalists!) over the ages that talion in cases of personal injury was not only impracticable, but unjust. In other words, in such cases the very retributive equality that forms the basis of talion is totally vitiated. Indeed, since compensation was actually practiced in the ancient Near East from earliest times, it is likely that it was practiced in the courts of Israel also from earliest times.
In sum, what we have represented in the biblical formulation of the talion law is theory not practice. Nonetheless, the plain meaning of the text cannot be altered: Literal talion is intended, but it probably did not take long, especially in the centralized government of Israel’s monarchy, for talion to be interpreted as compensation.
Why then was the talion formula retained? Perhaps the answer lies in something attributed to the 20th-century talmudist, Rabbi A. Karelitz (known as the Hazon Ish): “The intention is to teach the punishment (i.e., talion) in order to instill in the hearts of the people appreciation of the evil, and to this evil it is proper to adopt a strong phrasing.”5
Finally, I append the rabbis’ definition of compensation, which reveals their sensitivity to the psychological as well as material damage caused by injury:
“One who injures his fellow becomes liable to him for five items: for depreciation, for pain, for healing, for loss of time and for degradation. How is it with ‘depreciation’? If he put out his eye, cut off his arm, or broke his leg, we consider him (the injured person) as if he were a slave being sold in the market place, and valuation is made as to how much he was worth [previously] and how much he is worth [now]. ‘Pain’—if he burned him either with a spit or with a nail, even though on his [finger]nail, which is a place no bruise forms, we estimate how much a man similar to him would want to be paid to undergo such pain. ‘Healing’—if he has struck him, he is under obligation to heal him. Should ulcers [meanwhile] arise, if as a result of the wound, he (the offender) is liable, but if not as a result of the wound, he is exempt. When the wound was healed and reopened, he is still under obligation to heal him. If, however, it had completely healed, [and subsequently reopened], he is not obligated to heal him. ‘Loss of time’—we consider him (the injured person) as if he were a watchman of cucumbers (a simple task), for he (the offender) has already given the value of his hand or the value of his leg (under ‘depreciation’). ‘Degradation’—is figured entirely according to who is offended and who causes the offense.”6
The rabbis unanimously declare that all injuries (but not death) inflicted on persons are subject to compensation. How then do they grapple with the law of talion in Leviticus 24:17–20: “If anyone kills any human being, he shall be put to death. One who kills a beast shall make restitution for it: life for life. If anyone maims his fellow, as he has done so shall it be done to him: fracture for fracture, eye for eye, tooth for tooth. The injury he inflicted on another shall be inflicted on him.” Discussions in the Talmud reflect a troubled rabbinic […]
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