Emor for Tweens

Emor provides details about the lives of the priests and their families. The priestly role was and is both an honor and the burden. This parashah also includes the most comprehensive holiday calendar in the Torah instructing the people to observe Shabbat, Passover, the seven weeks between Passover and Shavuot (counting of the Omer), Yom Kippur and Sukkot.

In the seventh aliyah the penalty for hurting or killing another person or an animal are described.

…fracture for fracture, eye for eye, tooth for tooth. The injury inflicted on another shall be inflicted in return. (24:20)

The need for punishment and revenge is real, yet so much more complicated than this poetic and pithy verse. As this commentary is being written, a jury is deciding the fate of Zacarias Moussaoui, accused of a conspirator role in the 9/11/2001 terrorist attacks. This situation brings an ancient Biblical form of justice into a contemporary context.

The Torah depicts parents fighting about children, leaders making poor choices, brother fighting with brother, people stealing, people cheating, reticent leaders and acts of violence. Much like the parent who was instructed to bring a recalcitrant child to the village square to be stoned to death, the concept of an eye for an eye (also described in Exodus 21:13 and Deuteronomy 19:21) is a punishment for which there is no record of it ever being carried out in the precise manner described in the text. As interpreted by the Sages, Torah is to be taken seriously but not literally.

First, there is a practical concern. Many commentators have expressed concern about how this verse could be carried out. It seems to be a prescription for fairness. But we strive for justice, not fairness, and that concept is complicated. The Talmud asks, "How can any person be certain that the punishment they inflict is definitely no worse than the initial injury?" The concept of an eye for an eye is the cautionary principle of justice that limits punishment that is equal in kind to the offense. Scholars refer to an eye for an eye by the Latin phrase lex talionis (law of retaliation). In some ancient and modern societies, if a person is hurt, then the injured person or their relative takes vengeful retribution on the person who caused the injury. At times, this retribution is worse than the crime, up to and including death.

The Sages understand our verse to be limiting vengeance: if an eye is taken, the maximal punishment of the perpetrator must be the equivalent of one eye. The victim's anger would surely surpass that standard. What possible punishment could we give Zacarias Moussaouithat would in any way equal the pain inflicted on September 11, 2001? And is this what we truly desire? Would we ever dream of wanting to imitate such behavior?

The Rabbis interpret the verse under scrutiny to refer to "just compensation." According to Rashi, the Hebrew inflicted is definitively something which is given from hand to hand, and it is therefore a reference to monetary compensation. (Bava Kama 84a, K'tubot 32b) The method of calculation for payment is based on his worth as a slave (being sold in a slave-market) before he was injured, and his worth now; the difference is the payment. There are also other payments required, for the time he is unable to work, for the cost of the medical care required, for the pain and the shame. The mishnah articulated a five-part monetary form of compensation, consisting of payment for damages, pain, medical expenses, incapacitation and mental anguish, criteria that underlie many modern legal codes.

That we have to resort to calculating worth as if the victim were a slave is testament to the fact that our pain and our value cannot be measured monetarily. Money is a poor substitute to calculate damages to human life, but the ongoing debate about various types of malpractice makes it clear that it is the best means we have available. Maimonides admits that the system is imperfect. He teaches that while the perpetrator does deserve compensatory maiming, he must pay a monetary equivalent. (Hilchot Chovel Umachzik 1:3-6)

The lesson from this retributive, retaliatory verse is that we are to show restraint even when we have the right to act with vengeance. As Mahatma Gandhi is often quoted as saying "An eye for an eye and a tooth for a tooth, and the whole world would soon be blind and toothless." An eye for an eye may be fair, but it is not just. It is justice that we should pursue with the awareness that this pursuit is Archemedian; we can approach justice, but not overtake it.

Table Talk

1. What is the "tipping point," when a child realizes that two wrongs do not make a right, when hitting (or biting or yelling or grabbing) back does not help?

2. How does our understanding of this text relate to the claim that capital punishment is a deterrent?

3. Even in the case of Zacarias Moussaoui the jury is deliberating a significant amount of time to decide his fate. What kinds of things are factors in such a decision?

For Further Learning

Christian tradition has another interpretation of this verse. Matthew 5:38 cites the verse, "Eye for eye, tooth for tooth" and follows it with "But I say unto you, not to resist evil; but whoever shall strike thee on thy right cheek, turn to him also the other." (Matthew 5:39) These words are attributed to Jesus. It is thought that Jesus based the second verse on the idea from Proverbs 24:29, "Do not say, 'I will do to him what he did to me; I will pay the man what he deserves.'" The idea is that retribution comes from God, not from one person to another.Do you accept the idea of turning the other cheek? Why do you think the rabbis did not choose this interpretation, but rather delineated rules for monetary compensation? How do these ideas compare to what you know about Eastern religious ideas of justice and fairness?