An Eye for an Eye? Eye don’t know about that…

by Hazzan Jacob Sandler

At the very end of our Parasha in Leviticus 25:19-20 states,

“וְאִ֕ישׁ כִּֽי־יִתֵּ֥ן מ֖וּם בַּעֲמִית֑וֹ כַּאֲשֶׁ֣ר עָשָׂ֔ה כֵּ֖ן יֵעָ֥שֶׂה לּֽוֹ׃ שֶׁ֚בֶר תַּ֣חַת שֶׁ֔בֶר עַ֚יִן תַּ֣חַת עַ֔יִן שֵׁ֖ן תַּ֣חַת שֵׁ֑ן כַּאֲשֶׁ֨ר יִתֵּ֥ן מוּם֙ בָּֽאָדָ֔ם כֵּ֖ן יִנָּ֥תֶן בּֽוֹ׃”

“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.” Our Torah sounds an awful lot like the lex talionis – laws of retribution found in Hammurabi’s Code. An old teacher of mine said if we all lived according to “an eye for an eye; a tooth for a tooth” we’d all have a hard time seeing and chewing. Of course, this passage seems to contradict another ancient teaching I learned from my mother: “Two wrongs don’t make a right.” So, what do we make of this verse in our tradition?

 “הַחוֹבֵל בַּחֲבֵרוֹ חַיָּב עָלָיו מִשּׁוּם חֲמִשָּׁה דְבָרִים, בְּנֶזֶק, בְּצַעַר, בְּרִפּוּי, בְּשֶׁבֶת, וּבְבֹשֶׁת.”

The sages of the Talmud in Mishnah Bava Kama (8:1) discuss what retribution for injury really entails. They illuminate 5 categories: Damage, Pain, Medical costs, loss of livelihood and humiliation. They understood that “eye for an eye” was idiomatic and could be accomplished with monetary restitution.

Damage would be assessed by determining how the injured party’s value would be affected on the slave market. Of course nowadays, it’s hard to know what the standard slave market price would be before or after damages, but I imagine this would be determined similarly to disability insurance claim.

The Rabbis in the Talmud often amuse me with their imagination. How they assess pain is one such instance. Essentially it boils down to: “how much could you pay someone with a similar threshold for pain to endure that pain voluntarily?” Whatever amount that person would accept as a fair price for being burned, for example, is how much the liable party would owe the injured party for pain.

Medical expenses are fairly straightforward. The sages even factored in a clause to protect the liable party, stating, “if marks are due to the incident, liable; if not due to the incident, exempt.” If the wounds heal and return, the liable party is responsible for ongoing care costs. However if the wound is entirely healed, the liable party has paid their retribution for medical expenses.

Loss of livelihood is surprisingly not based on the standard wages for the injured party’s particular profession. This is because they were already compensated for their “eye or tooth or arm or leg” as part of ‘damages’ and that took into account their professional skill. So, in this case all are treated by the court as watchmen over cucumbers and compensated on that payscale. (Tell me that’s not fascinating! The Rabbis really thought this stuff through!)

Humiliation is a little more of a gray area. The costs factor in the power dynamics and difference in status between the parties, as well as the intention of the fellow who caused the injury. A person is not considered liable for humiliation unless he intended to humiliate the other person.

So yes, when someone injures a fellow human being, they will have to make things right. This will be done financially, and God-willing with graciousness and remorse for the unfortunate debacle. The Torah goes on in Lev.24:22, “you shall have one standard for stranger and citizen alike: For I the Lord am your God.” All of us are responsible for making things right when we cause injury regardless of our background.