Friday, January 28, 2011

Why The Gemara Must Explain Eye for an Eye in a Non-Literal Fashion

In this week's Parsha, Mishpatim, there is a very famous verse. It says (Shemos 21:24):

כד  עַיִן תַּחַת עַיִן, שֵׁן תַּחַת שֵׁן, יָד תַּחַת יָד, רֶגֶל תַּחַת רָגֶל.
24 eye for eye, tooth for tooth, hand for hand, foot for foot,

Is the Torah actually telling us that if a man pokes another man's eye out then his eye should be poked out? Is it so wrong if that would be what the Torah is saying? Perhaps the Torah is referring to money and this is NOT TO BE TAKEN LITERAL like other aspects of the Torah? Let's see what our options are.

In the Gemara in Babba Kamma (83b-84a) it discusses whether this verse is meant literally or not. There are several different Tannaim and Amoraim that bring down their reasonings as to why they believe the verse is not meant literally, but rather it is a parable for money. (For the Gemara in English see here and in Hebrew see here)

The first views brought down in the Gemara are a mixture of Tannaim and Amoraim saying why they feel the ORIGINAL intent of the Torah is monetary compensation and not a literal flesh for flesh type of deal. They bring down different words that they elaborate on to teach these different meanings. However, there are two views in the Gemara that seem to be saying that the intent of the Torah is actually that of flesh for flesh, but they are "proven" wrong. The first view is that of Abaye quoting the Study Hall of Hezekiah. (Granted, this idea is questioned without an answer, but I do not think that should rule it out as an opinion because one could easily come up with an answer.) The second view is that of Rebbe Eliezar. He says that an Eye for an Eye is meant literally. (Granted, the Gemara goes on to explain him as meaning something else, but it seems unjustified, as will be explained later.)

The view that Abaye brings down says:

"Abbaye said: [The principle of pecuniary compensation] could be derived from the teaching of the
School of Hezekiah. For the School of Hesekiah taught: Eye for eye, life for life, but not ‘life and
eye for eye’. Now if you assume that actual retaliation is meant, it could sometimes happen that eye
and life would be taken for eye, as while the offender is being blinded, his soul might depart from

So, according to this explanation of Abaye it seems like the reason we only collect money in this situation is because it is impossible to make sure the punishment will not kill the guilty party. However, if we somehow had a way to inflict the damage while being positive that the person would not die, then an Eye for an eye could be literal. (Abaye is trying to come up with a reason to make the Torah not literal, however, his reasoning leads to the possibility for the Torah to be taken literally. If we somehow came up with a method to take an eye out while being sure to not kill the person, then, according to Abaye's reasoning, we would take the eye and not the money. I would venture to say that nowadays, according to Abaye's reasoning, the Torah would be taken literally.)

The opinion of Rebbe Eliezar requires a deeper analysis. It is clear that Abaye's statement is meant to work on the inability for man to assure the people that taking out an eye would not kill the guilty party. However, Rebbe Eliezaar says:

"It was taught: R. Eliezer said: Eye for eye literally refers to the eye [of the offender]."

However, the Gemara makes a very puzzling statement about Rebbe Eliezar's words:

"Literally, you say? Could R. Eliezer be against all those Tannaim [enumerated above]?"

What is the Gemara trying to tell us here? Rebbe Eliezar was a Tanna, Tannaim argue all the time. Why would the Gemara assume that Rebbe Eliezar is UNABLE to argue on the other Tannaim listed here? There are many times when Tannaim argue against the opinions of several other Tannaim and the Gemara does not completely reinterpret their words. It is strange that here, in the instance of Eye for an Eye, the Gemara feels that Rebbe Eliezar is unable to argue with other Tannaim. After all, this is the same Rebbe Eliezar that defied all of the Tannaim and was excommunicated by Rabban Gamliel.

(For those who are unfamiliar with the story,  here it is from here (Babba Metzia 59a-b):
We learned elsewhere: “If he cut it into separate tiles, placing sand between each tile: Rabbi Eliezer declared it clean, and the sages declared it unclean; and this was the oven of ‘Aknai.”  Why [the ovenof] ‘Aknai?—Said Rav Judah in Samuel’s name: “[It means] that they encompassed it with arguments as a snake, and proved it unclean.”
It has been taught: On that day Rabbi Eliezer brought forward every imaginable argument, but they did not accept them. Said he to them: “If the halakhah agrees with me, let this carob-tree prove it!”
Thereupon the carob-tree was torn a hundred cubits out of its place. Others affirm, four hundred cubits.
“No proof can be brought from a carob-tree,” they retorted.
Again he said to them: “If the halakhah agrees with me, let the stream of water prove it!”—whereupon the stream of water flowed backwards.
“No proof can be brought from a stream of water,” they rejoined.
Again he urged: “If the halakhah agrees with me, let the walls of the schoolhouse prove it,” whereupon the walls inclined to fall.
But Rabbi Joshua rebuked them, saying: “When scholars are engaged in a halakhic dispute, what have you to interfere?”
Hence they did not fall, in honor of Rabbi Joshua, nor did they resume their upright position, in honor of Rabbi Eliezer; and they are still standing thus inclined.
Again he said to them: “If the halakhah agrees with me, let it be proved from Heaven!” Whereupon a Heavenly Voice cried out: “Why do you dispute with Rabbi Eliezer, seeing that in all matters the halakhah agrees with him!” But Rabbi Joshua arose and exclaimed: “It is not in heaven.” 
What did he mean by this? Said Rabbi Jeremiah: That the Torah had already been given at Mount Sinai; we pay no attention to a Heavenly Voice, because You have long since written in the Torah at Mount Sinai, ‘‘After the majority must one incline.” 
Rabbi Nathan met Elijah (the prophet) and asked him: “What did the Holy One, Blessed be He, do in that hour?—He laughed [with joy],” he replied, “saying, ‘My sons have defeated Me, My sons have defeated Me.’’’
It was said: On that day all objects which Rabbi Eliezer had declared clean were brought and burnt in fire. Then they took a vote and excommunicated him.  Said they, “Who shall go and inform him?”
“I will go,” answered Rabbi Akiva, “lest an unsuitable person go and inform him, and thus destroy the whole world.” 
What did Rabbi Akiva do? He donned black garments and wrapped himself in black, and sat at a distance of four cubits from him.
“Akkiva,” said Rabbi Eliezer to him, “what has particularly happened today?”
“Master,” he replied, “it appears to me that your companions hold aloof from you.” Thereupon he too rent his garments, put off his shoes, removed [his seat] and sat on the earth, while tears streamed from his eyes. The world was then smitten: a third of the olive crop, a third of the wheat, and a third of the barley crop. Some say, the dough in women’s hands swelled up. 
A tanna taught: Great was the calamity that befell that day, for everything at which Rabbi Eliezer cast his eyes was burned up. Rabban Gamaliel too was traveling in a ship, when a huge wave arose to drown him.
“It appears to me,” he reflected, “that this is on account of none other but Rabbi Eliezer ben Hyrcanus.”
Thereupon he arose and exclaimed, “Sovereign of the Universe! You know full well that I have not acted for my honor, nor for the honor of my paternal house, but for Yours, so that strife may not multiply in Israel!”
At that the raging sea subsided.)

This story clearly shows that Rebbe Eliezar was quiet capable and willing to argue on multiple Tannaim, even many at once. Therefore, I am confused as to why the Gemara feels that it must reinterpret his statements to mean something else. 

It seems to me that there is something else going on here in this Gemara. The Torah gave the scholars the ability to set laws as they see fit. The Torah says, without any ambiguity, that we should follow our leaders. What does it seem like is going on here? The Torah scholars in the time of the Gemara did not want anyone to think that taking a limb for a limb was acceptable. That is why they spent two full pages bringing numerous different ideas as to why this verse MUST NOT be literal. The Gemara could not bring down just one or two opinions in this situation like it does in so many others, it needed to show how there was unanimous support for this idea of eye for an eye not being literal. That is why any hint of literal explanation like Abaye or Rebbe Eliezar, along with a couple others, are rejected in the strongest terms. Why MUST have Rebbe Eliezar meant something else when he seemingly says that the punishment was meant to be literal? Because that idea was (and is) antithetical to the ideas found in the Torah. Therefore, it MUST be unanimous that Eye for an Eye was not literal. 

What do I mean that Eye for an eye being literal is antithetical to the Torah? The Torah is divine wisdom and the moral compass for the Jewish people. How could the Torah then claim that the punishment for maiming someone is to be maimed? Lashes and the death penalty are fundamentally different than maiming someone. The reason is hinted to in the Gemara as another answer, but I will just say it out here. Lashes heal and are not permanent. Death is equal, you took someones life and now your life is being taken because every man is equal under G-D. However, maiming someone is unjust in and of itself. How can you know how much my arm is worth to me and those around me. How much was the arm that was taken worth? Maiming someone is not an equal punishment. Two eyes do not see equally well, are not the same size and, by definition, do not have the same worth. The only just way to deal with this is monetarily. 

The Gemara gives this idea a unique amount of attention and the Gemara brings down a unique amount of opinions to show how it must be that this verse was meant to mean monetary value. I think that the reason for this is because of our belief as Jews that the Torah is from G-D and is divine. Meaning, the Torah is the source of all Justice and it teaches us how to live our lives.  


Mike S. said...

Nice thought, and I think it underlies in large measure why the Torah does not impose lex talionis. Although another important answer is that it would provide no compensation for the injured party. (although the latter is probably tied up in the Machloket between Tosfos and Ramba"n about whether the din of Nezikin is principally about punishing the Mazik for his carelessness or about compensating the Nizak for his damage). But there may be a simpler answer--while we do not usually think of a personal injury claim in Beis din, this would have been a fairly common occurrence in the time of the Tannaim and Amoraim. Everyone would have known the bottom line halacha that these cases result in monetary payment rather than dismemberment, and it would have been unthinkable that R. Eliezer did not also know this and see it on a regular basis.

That said, I once asked the Rav why the Torah phrases the Law in the way that it does, if it is obvious we shouldn't understand it literally. He answered that one should feel as though one deserves to lose his eye if he carelessly or deliberately pokes out someone else's. He should not feel that he is entitled to buy the privilege of either deliberately poking out an eye or of being careless with other people's safety for a monetary payment. At first I could not understand why this obvious point would need to be made, but about a week after this I was speaking with my grandfather, who was a lawyer, who said: "The law doesn't forbid you from running a stop sign. It tells you that if you are caught doing so it will cost you $25 plus points on your license." After that I understood what the Rav said, and it has stuck with me tightly.

E-Man said...

Very nice point.