This week’s Torah portion contains one of the most misunderstood passages in the entire Torah. In Shemot (21:22-25) we have the following section of verses: “And should men quarrel and hit a pregnant woman, and she miscarries but there is no fatality, he shall surely be punished, when the woman's husband makes demands of him, and he shall give restitution according to the judges' orders. But if there is a fatality, you shall give a life for a life. An eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot. A burn for a burn, a wound for a wound, a bruise for a bruise.”
Throughout the centuries many have misunderstood “an eye for an eye” to be revenge punishment. In the 20th Century, Martin Luther King said “The old law of an eye for an eye leaves everyone blind.” And Mahatma Ghandi said “An eye for an eye only ends up making the whole world blind.” Even Tevye from Fiddler on the Roof says “The whole world will be blind and toothless.”
But our Oral Tradition has always understood these verses to be talking about monetary repayments. As Rashi citing the Talmud writes “If a person blinds his neighbor’s eye, he must give him the value of his eye, which is how much his price to be sold in the marketplace has decreased without the eye. So is the meaning of all of them i.e., all the injuries enumerated in the following verses, but not the actual amputation of a limb, as our Rabbis interpreted it in Perek Hahovel” (commentary to Shemot 21:24).
Many think that this means that our written Torah was humanized by the Rabbis centuries later. But this is not the case as we know that God gave Moshe not only the Torah Shebichtav – The Written Torah but also the Torah Sheba’alpe – The Oral Torah. Rabbi Shmuel Goldin writes in his excellent work Unlocking the Torah Text “Why doesn’t the Torah simply say what it means? Over the ages, the “eye for an eye” formula has been cited by critics as proof of the vengeful, primitive nature of Mosaic Law. If the Torah never meant to mandate physical punishment in cases of personal injury, why wasn’t the text more clearly written? A great deal of misunderstanding, misinterpretation and trouble could have been avoided had the Torah simply stated, ‘The court shall levy the appropriate compensatory payment in cases of personal injury.’”
Rabbi Goldin explains “the Torah confronts a serious dilemma as it moves to convey its deeply nuanced approach to cases of personal injury: using the tools at its disposal, how can Jewish law best reflect the discrepancy between ‘deserved’ and ‘actual’ punishment?
“The gravity of the crime is such that, on a theoretical level, on the level of ‘deserved punishment,’ the case belongs squarely in the realm of dinei nefashot (capital law). The perpetrator truly merits physical loss of limb in return for the damage inflicted upon his victim. Torah law, however, will not consider physical mutilation as a possible punishment for a crime. The penalty must therefore be commuted into financial terms. Had the Torah, however, mandated financial payment from the outset, the full gravity of the crime would not have been conveyed. The event would have been consigned to the realm of dinei mamonot (monetary crimes), and the precious nature of human life and limb would have been diminished. The Torah therefore proceeds to express, with delicate balance, both theory and practice within the law.”