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An Eye for An Eye Redux

4 minute read
Straightforward

One of the most bizarre and incomprehensible laws of the entire Torah was also one of the ancient world’s most important laws – the law of retaliation; also called lex talionis:

עַיִן תַּחַת עַיִן שֵׁן תַּחַת שֵׁן יָד תַּחַת יָד רֶגֶל תַּחַת רָגֶל׃ – An eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot. (21:24)

The law of retaliation isn’t the Torah’s innovation; it appears in other Ancient Near Eastern law codes that predate the text of the Torah, such as the Code of Hammurabi. All the same, it appears three times in the Torah, and its words are barbaric and cruel to modern eyes, easily dismissed as unworthy of humane civilization.

People who wish to express their opposition to forgiveness, concession, and compensation, insisting on retaliation of the most brutal and painful kind, will quote “An eye for an eye” as justification, conjuring a vision of hacked limbs and gouged eyes.

This law is alien and incomprehensible to us because we lack the necessary context; we fail to recognize its contemporary importance to early human civilization.

The human desire for revenge isn’t petty and shallow. It stems from a basic instinct for fairness and self-defense that all creatures possess; and also from a deeply human place of respect and self-image. When a person is slighted, they self-righteously need to retaliate to restore balance. It makes sense.

The trouble is, balance is delicate and near impossible to restore, so far more often, people would escalate violence, and so early human societies endured endless cycles of vengeance and violence. In this ancient lawless world, revenge was a severe destabilizing force.

This is the context we are missing. In such a world, societies developed and imposed the law of retaliation as a cap and curb violence by prohibiting vigilante justice and disproportionate vengeance. An eye for an eye – that, and crucially, no more. It stops the cycle of escalation, and tempers, if not neuters, the human desire for retribution. Crucially, it stops feuds from being personal matters, subordinating revenge to law and justice by inserting the law between men, a key political theory called the state monopoly on the legitimate use of physical force.

R’ Jonathan Sacks observes that the same rationale underlies the Torah’s requirement to establish sanctuary cities. The Torah inserts laws between the avenger and the killer, and a court must give the order. Revenge is not personal, and it is sanctioned by society.

This was familiar to the Torah’s original audience. We ought to reacquaint ourselves with this understanding – the law is not barbaric and primitive at all; it’s essential to building a society.

Even more importantly, our Sages taught that these words are not literal, and instead, the remedy for all bodily injury is monetary compensation. The Torah forecloses compensation for murder –  לא תקחו כופר לנפש רוצח. The fact the Torah chooses not to for bodily injuries necessarily means compensation is allowed. And since people are of different ages, different genders, and in different trades, with discrete strengths and weaknesses; mirroring the injury isn’t a substitute at all, so paying compensation is the exclusive remedy, in a sharp application of the rule of law – there shall be only one law, equitable to all – מִשְׁפַּט אֶחָד יִהְיֶה לָכֶם.

Before dismissing this as extremely warped apologetics, the overwhelming academic consensus is that no society practiced the law as it is written. Today, we readily understand that if we suffer bodily injury, we sue the perpetrators’ insurance company, and the ancient world understood that tradeoff too.

How much money would the victim accept to forgo the satisfaction of seeing the assailant suffer the same injury? How much money would the assailant be willing to pay to keep his own eye? There is most certainly a price each would accept, and all that’s left is to negotiate the settlement figure, which is where the court can step in. Even where the law is not literally carried out, the theoretical threat provides a valuable and perhaps even necessary perspective for justice in society.

It’s vital to understand this as a microcosm for understanding the whole work of the Torah. There is a much broader point here about how we need to understand the context of the Torah to get it right, and we need the Oral Tradition to get it right as well. The text is contingent, to an extent, on the body of law that interprets and implements it.

Without one or the other, we are getting a two-dimensional look at the very best, or just plain wrong at worst. If we were pure Torah literalists, we would blind and maim each other and truly believe we are doing perfect like-for-like justice! After all, what more closely approximates the cost of losing an eye than taking an eye?! Doesn’t it perfectly capture balance, precision, and proportionality elegantly? It holds before us the tantalizing possibility of getting divinely sanctioned justice exactly right!

But we’d be dead wrong. Taking an eye for an eye doesn’t fix anything; it just breaks more things.

The original purpose of the law of retaliation was to limit or even eliminate revenge by revising the underlying concept of justice. Justice was no longer obtained by personal revenge but by proportionate punishment of the offender in the form of compensation enforced by the state. While not comprehensive, perhaps this overview can help us look at something that seemed so alien, just a bit more knowingly.

There’s a valuable lesson here.

The literal reading of lex talionis is a vindictive punishment that seeks pure cold justice to mirror the victim’s pain and perhaps serve as a deterrent.

With our new understanding, compensation is not punitive at all – it’s restitutive and helps correct bad behavior. You broke something or caused someone else pain, and now you need to fix it – and you don’t have to maim yourself to make it right!

There is nothing outdated about the law of retaliation. It’s as timely as ever because we all break things. We hurt others, and sometimes we hurt ourselves too. Our Sages urge us to remember that one broken thing is bad, and two broken things are worse. We can’t fix what is broken by adding more pain and hope to heal.

Taking it further, there is a wider lesson here as well.

In seeking justice for ourselves, we needn’t go overboard by crushing our enemies and hearing the lamentations of their women. We can and should protect ourselves and our assets, but we needn’t punish our adversaries mercilessly such that they never cross us again. In a negotiation, don’t squash the other side just because you can. It’s about making it right, not winning. Channeling the law of retaliation, don’t escalate. Think in terms of restitution, not retribution.

Do all you must, sure, but don’t do all you could.

All Men are Created Equal

3 minute read
Straightforward

Centuries ago, the founding fathers of the United States of America made the radical and immortal proclamation that all men are created equal.

Today, this doctrine is called egalitarianism and is arguably a cornerstone of the modern world. This political theory prioritizes equality for all people, generally characterized by the idea that all humans are equal in fundamental worth or moral status and should have equal rights. While different sections along the political spectrum can reasonably disagree on the exact contours of equality and which policies further its ideals, it is clear that the inequalities of the ancient world are relics of history. Feudalism and entitled aristocracy are gone, as is a landed gentry with lords and serfs. Today, we understand that all men are created equal and that no one is better or worse than anyone else.

Quite compellingly, the Torah makes a case for a form of equality that not only predates many of the Renaissance ideals that gave rise to the modern world; but is quite arguably their source.

When the Torah talks about humans in the image of God, the Torah is unequivocal that the only hierarchy that exists is between you and God. There is no one else above or below you; every other human stands alongside you and under God. 

What’s more, is that whenever the Torah talks about interpersonal mitzvos and our duties to each other, the Torah utilizes recursive imagery in which all the laws are rooted: 

כִּי-יִהְיֶה בְךָ אֶבְיוֹן מֵאַחַד אַחֶיךָ / וְלֹא תִקְפֹּץ אֶת-יָדְךָ, מֵאָחִיךָ, הָאֶבְיוֹן / וְרָעָה עֵינְךָ בְּאָחִיךָ הָאֶבְיוֹן, וְלֹא תִתֵּן לוֹ / פָּתֹחַ תִּפְתַּח אֶת-יָדְךָ לְאָחִיךָ / כִּי-יִמָּכֵר לְךָ אָחִיךָ הָעִבְרִי / לְבִלְתִּי רוּם-לְבָבוֹ מֵאֶחָיו / וְנַחֲלָה לֹא-יִהְיֶה-לּוֹ, בְּקֶרֶב אֶחָיו / וְשֵׁרֵת, בְּשֵׁם ה אֱלֹקיו–כְּכָל-אֶחָיו / נָבִיא מִקִּרְבְּךָ מֵאַחֶיךָ / וַעֲשִׂיתֶם לוֹ, כַּאֲשֶׁר זָמַם לַעֲשׂוֹת לְאָחִיו – When there will be a poor man among your brothers / Don’t withold your hand from your brother, the poor man / Should your eye turn evil towards your poor brother, and you don’t give him [what he needs] / Open your hands to your brother, and open them once more / Should your brother be sold as a slave / [Let a king] not be haughty over his brothers / [The kohen] shall not have an inheritance with his brothers [because of his extra benefits] / He will serve in God’s name, as his brothers / A prophet will come from among your brothers / Conspiring witnesses shall suffer what they conspired upon their brother. (Multiple sources)

Whether we’re talking about rich and poor, slaves or kings, prophets or priests, the Torah utilizes the imagery of brotherhood and fraternity consistently. When the Torah says something, it matters. When the Torah says the same recurring thing over and over, it matters a lot, and we should recognize it as such. 

The Torah asks us not to define people by their status in a hierarchy as a lender or borrower, king or subject, master or slave. While socioeconomic status may accurately describe us, it is our common identity that defines us. 

There is a radical concept here.

We must help each other, not because we are different, but because we are the same.

The theory of common identity anchoring us to each other is presented as one of the foundational reasons we observe the Torah:

וְזָכַרְתָּ, כִּי עֶבֶד הָיִיתָ בְּאֶרֶץ מִצְרַיִם, וַיִּפְדְּךָ, ה אֱלֹקיךָ – Remember that you were a slave in Egypt, and the Lord redeemed you (15:15)

The fact that we were once oppressed is not merely a reason to find empathy with vulnerable folks; it goes further. It should serve as a constant reminder that we mustn’t fall victim to arrogance and hubris by taking credit for our good fortune – וְאָמַרְתָּ בִּלְבָבֶךָ כֹּחִי וְעֹצֶם יָדִי עָשָׂה לִי אֶת־הַחַיִל הַזֶּה.

Although egalitarianism informs many government policies today, we live in a modern professional world optimized for capital and commerce, not community. It has bestowed a litany of benefits and has resulted in arguably the finest era of human society to date. Still, while reasonable people can disagree on what optimal social policy looks like, we ought to remember that the Torah’s conception of our duties to each other goes a lot further than equality and deep into the realm of brotherhood and fraternity, imposing a firm sense of duty to protect and respect each other.

The Torah speaks past our relative status and straightforwardly and unambiguously demands that you see the less fortunate as your responsibility. It has nothing to do with generosity and everything to do with our duties towards each other.

Because there, but for the grace of God, go I.

Ill-Gotten Gains

3 minute read
Straightforward

While still reeling from the extraordinary events at Sinai, the Jewish People started building the Mishkan that would be the focal point of religious life for many generations. While still at the mountain, God instructs the people to build altars for their sacrifices:

מִזְבַּח אֲדָמָה תַּעֲשֶׂה־לִּי וְזָבַחְתָּ עָלָיו אֶת־עֹלֹתֶיךָ וְאֶת־שְׁלָמֶיךָ אֶת־צֹאנְךָ וְאֶת־בְּקָרֶךָ בְּכל־הַמָּקוֹם אֲשֶׁר אַזְכִּיר אֶת־שְׁמִי אָבוֹא אֵלֶיךָ וּבֵרַכְתִּיךָ. וְאִם־מִזְבַּח אֲבָנִים תַּעֲשֶׂה־לִּי לֹא־תִבְנֶה אֶתְהֶן גָּזִית כִּי חַרְבְּךָ הֵנַפְתָּ עָלֶיהָ וַתְּחַלְלֶהָ – Make for Me an altar of earth and sacrifice on it your burnt offerings and your sacrifices of well-being, your sheep and your oxen; in every place where I cause My name to be mentioned I will come to you and bless you. And if you make an altar of stones for Me, do not build it of hewn stones; for by wielding your tool upon them, you have profaned them. (20:24-25)

Most of the rest of the book of Exodus deals with the construction and assembly of the Mishkan, but with a material interruption for the civil law; the laws of a thief who cannot pay restitution and so must work off his debt, the laws of charity, and the laws of damages and duties of care, among others.

But if the narrative direction has turned towards the Mishkan, why interrupt it with civil laws?

The Beis Halevi explains that the Torah’s prerequisite to the construction of the Mishkan is that the people building it and using it live with kindness, charity, and social responsibility. People can pledge all the money in the world to worthy causes, but the contributors and contributions must be kosher, obtained ethically, and with regard to the well-being of others.

The Torah’s treatment of a Jew who steals and must work off his debt is illuminating. This Jewish man must be well-treated and cared for, and he is not the permanent property of his owner. But nor is he a fully-fledged Jew for the term of his slavery; his primary obligation is to his owner, and he relinquishes many obligations to observe the Torah as he once did. He is even permitted to marry a non-Jew in this state and start a family, but these children will not be Jewish and will belong to his master. 

Perhaps we aren’t as sensitive to ill-gotten gains as we should be. This is the Torah’s first law after Sinai, telling an unfortunate soul hot to navigate the way to mend the crime of theft. The Torah is quite clear that renouncing Judaism, marrying a non-Jew, and having a family of slave children are part of the rehabilitation from how bad stealing is.

R’ Zalman Sorotzkin notes that the Torah has already opened the discussion about the Mishkan, specifically the altars of earth and stone. God initiates the Mishkan construction with materials that are freely available to everyone and of negligible value before ever asking the people to bring gold, silver, and precious gems. In so doing, the Torah openly states that holiness is universally accessible without glamour.

Moreover, before any discussion of the valuable contributions, the Torah emphasizes the need to be scrupulously honest. Before God asks people what they have to offer, God lays out the consequences of theft, demanding that the contributors rightfully obtain their gifts.

Our sages have a broad and deep debate about good deeds that are the product of bad deeds – מצווה הבאה בעבירה. The parameters of what is disqualifying and how disqualifying it is are technical, but the concept is not. Isaiah unambiguously states that God loves justice, and hates human attempts at holiness with ill-gotten gains – כִּי אֲנִי ה’ אֹהֵב מִשְׁפָּט שֹׂנֵא גָזֵל בְּעוֹלָה.

A good deed is a good deed – Judaism is not all or nothing. If you’re not good at keeping Shabbos, you should still try to keep kosher! As the Baal Shem Tov teaches, the good deed of charity has a positive real-world impact regardless of intent or origin. But generosity with money dishonestly earned is missing something.

Business is tough; for some people, business is war! But how we put food on the table falls under the rubric of the Torah just as much as keeping Shabbos or kosher. While the specifics are complex and nuanced, the rules of thumb are not.

Follow through. Keep your word. Don’t step on people. Pay bills on time. Don’t retrade.

There is such a thing as human complexity; what were the terms? Was the service performed within the agreed scope of work? But there is no moral complexity.

The Mekor Baruch states simply that ill-gotten money is dirty money, and dismisses crooks who attempt to launder their reputations with loud donations. Do not be complicit in their attempts.

For better and for worse, our society is built around capital and access to it. Even if we sometimes choose to ignore or forget, we should remind ourselves that in the final analysis, even the most generous donations can’t straighten a crook.   

Because before you ever do the right thing with your money, it matters every bit as much that you obtained it in the right way.

Charity Redux

6 minute read
Straightforward

One of the foundations of the modern world we inhabit is the notion of egalitarianism, the idea that all humans are equal in fundamental worth or moral status; giving birth to, among others, the ideas that women aren’t lesser than men, and that black people aren’t lesser than white people, and the like.

This has been a decisively positive development in many respects; it is self-evident that all humans are fundamentally equal, and the Torah says as much – וַיִּבְרָא אֱלֹקים  אֶת־הָאָדָם בְּצַלְמוֹ בְּצֶלֶם אֱלֹקים בָּרָא אֹתוֹ זָכָר וּנְקֵבָה בָּרָא אֹתָם.

But it is equally evident that in many respects, the universe is not fair or equal; plenty of people are disadvantaged in countless ways. Many hardworking, honest, and decent people have difficult, stressful, and impoverished lives, not to mention the various health issues so many people experience. Human input isn’t decisive; luck is.

A modern phenomenon in human civilization has emerged to address this imbalance: the welfare state. First-world governments allocate taxpayer funds to alleviate the poverty of the disadvantaged and less fortunate – in other words, charity is a core part of national policy. This practice has been criticized for perversely enabling and exacerbating poverty further, reducing the incentive for workers to seek employment by reducing the need to work and reducing the rewards of work. If we help these people, so the thinking goes, they become dependent and lazy. Moreover, it’s a zero-sum game; I have to give up more of what’s mine, and somebody else gets the benefit from it – as any child could tell you, that’s not fair!

While the specific contours of government policy are best left to experts, it brings to the fore a relevant question that profoundly impacts our orientation to others. 

What do we owe to each other?

The conventional understanding of charity is that it’s an act of benevolent kindness and generosity, initiated and executed at the actor’s sole discretion; but this is not the Jewish understanding. 

The Jewish understanding of tzedaka is orders of magnitude more comprehensive and overarching. Extending far beyond the boundaries of kindness, the word itself literally means justice. The practice is a religious duty and social obligation; we have a duty to dispense God’s justice by helping the less fortunate. In the ancient agrarian world of the Torah, Jewish farmers were subject to mandatory religious taxes that were allocated to different beneficiaries according to specific parameters. To this day, many Jews tithe their income, allocating at least ten percent to worthy causes.

The Torah is consistently firm and unequivocal in our obligations towards each other:

וְכִי־יָמוּךְ אָחִיךָ וּמָטָה יָדוֹ עִמָּךְ וְהֶחֱזַקְתָּ בּוֹ… וְחֵי אָחִיךָ עִמָּךְ – When your brother languishes, and his hand falters, you must steady and support him… Let your brother live by your side, with you. (Leviticus 25:35,36)

This framing allows no savior complex; the Torah says plainly that the recipient of your help is a disadvantaged equal, lateral to you. There is no hierarchy or verticality in helping your brother – אָחִיךָ – and you must help him live alongside you, with you – עִמָּךְ. The person you get to help is not lesser or worse than you.

R’ Shamshon Raphael Hirsch highlights how in this conception, the value of a person is not tied in any way to their economic productivity; the Torah speaks of a person’s hand faltering and requiring assistance, yet still remaining your brother – וְכִי־יָמוּךְ אָחִיךָ וּמָטָה יָדוֹ עִמָּךְ. Other people don’t need to achieve anything or make money to be valid in their humanness or worthy of your respect and support. 

The Rambam famously taught that the highest level of charity is helping people get on their own feet – the ultimate and most literal fulfillment of helping your brother stand alongside you.

In the Torah’s primeval story of the dawn of humanity, Cain fatefully asks God the rhetorical question, “Am I my brother’s keeper?” This question deserves scrupulous attention, not just because we read the story and know that Cain is attempting to cover up his crime, but because it is the great unanswered question of Genesis and quite possibly the entire Torah and all of human history.

The pregnant silence in the story is jarring; when we read about the obligations we have toward our brother, we should consider them in light of the Torah’s first brothers – perhaps suggesting that yes, you are indeed your brother’s keeper. 

Echoing the Genesis story, the Ramban famously wrote to his son that humans have no natural hierarchy; nobody is better than you, and you’re better than nobody. Humans are brothers; the Torah speaks of what we owe each other as a result of our fraternal bond; our obligations to each other are born of sameness, not of difference. The interpersonal mitzvos are obligations between equals – from human to human; horizontal, and not vertical.

The mitzvah to aid others is far-reaching – it goes far beyond money, encompassing your time, energy, and emotions, even to the point of manual labor:

לֹא־תִרְאֶה אֶת־חֲמוֹר אָחִיךָ אוֹ שׁוֹרוֹ נֹפְלִים בַּדֶּרֶךְ וְהִתְעַלַּמְתָּ מֵהֶם הָקֵם תָּקִים עִמּוֹ – If you see your brother’s donkey or his ox fallen on the road, do not ignore it; you must surely raise it together. (Deut 22:4)

Beyond your brother, or the people you’d want to help, you are even obligated to help the people you don’t:

כִּי־תִרְאֶה חֲמוֹר שֹׂנַאֲךָ רֹבֵץ תַּחַת מַשָּׂאוֹ וְחָדַלְתָּ מֵעֲזֹב לוֹ עָזֹב תַּעֲזֹב עִמּוֹ – When you see the ass of your enemy lying under its burden and would refrain from raising it, you must nevertheless surely help raise it. (Ex 23:5)

R’ Shamshon Raphael Hirsch notes the common tendency humans have to give up on people who seem to attract calamity and misfortune; it would be far easier to cut them loose. The Torah speaks against the backdrop of such wayward thinking and reminds us that this person is your brother; you cannot give up on him. You must persist in helping, even if he fails over and over again – עָזֹב תַּעֲזֹב / הָקֵם תָּקִים.

However, this unilateral obligation is ripe for abuse, giving cheats and crooks a religiously sanctioned opportunity to exploit good people. The Kli Yakar offers a sharp caveat; you must only persist in helping people who are at least trying to help themselves – עִמּוֹ. R’ Shlomo Farhi piercingly suggests that it is not actually possible to help someone who won’t help themselves; the mitzvah is only to help, not enable. But so long as they’re trying, don’t walk away; figure it out together – עָזֹב תַּעֲזֹב עִמּוֹ / הָקֵם תָּקִים עִמּוֹ. 

Our sages suggest that we should be grateful for cheats and crooks; otherwise, we’d be guilty over each and every person we fail to help.

While many mitzvos and rituals have an accompanying blessing to initiate the action, the Rashba notes that interpersonal mitzvos do not have such a blessing; making a blessing before helping another person would be dehumanizing, instrumentalizing a person into an object you do a mitzvah with, eroding the mitzvah entirely.

The Torah has a prominent spiritual dimension, but the interpersonal aspect of the Torah is a coequal, interdependent, and reciprocal component. It can be easy to get carried away with the spiritual trappings of helping people without being concerned about the person, but that’s what it’s all about – the other person is your brother, and you need to relate to him in that way.

R’ Yitzchak Hutner was a Rosh Yeshiva renowned for his wit. Sick in hospital, a student came to visit his teacher and mentor. The great rabbi asked his guest why he had come, and the young man responded that it was a great mitzvah to visit the sick. Characteristically, R’ Hutner challenged his visitor, “Am I your Lulav? Did you come to shake me?”

If we are more concerned about lazy freeloaders who exploit public resources than disadvantaged people who need a leg up, it is only misdirection from the lesser angels of our nature; moral indignation that permits acting on envy and hate under a cloak of virtue. The Torah articulates a clear skew and strong preference toward taking action that helps others; the marginal cost of not helping is unacceptable.

Tzedaka is not charity or philanthropy. Less fortunate isn’t a euphemism; it’s a self-evident and observable fact. It’s entitled to think it’s not fair that you have to give something up so someone else can benefit; it’s about justice, not fairness. Giving your money to others is explicitly a zero-sum game. By telling us to do it anyway, the Torah explicitly dismisses this objection as irrelevant, revealing that thinking in terms of winning and losing is an entirely incorrect perspective to bring to the interaction.

Your choice isn’t whether to help others; it’s who to help and how – which charities to give to, and in what quantities. It’s the right thing to do; it is wrong not to.

It is important to be a good steward of capital; will this contribution be the highest and best use of your resources? But while it’s vital to think in terms of impact and effectiveness, be mindful that some people aren’t ever going to get by on their own. The widows and orphans of the world aren’t going to be okay because you wrote a check one time or sent a care package for Pesach; people experiencing chronic illness aren’t going to recover because you visited them once or hosted a fundraiser a while back. 

The Torah calls for your continued interest and persistent involvement, not a one-off act; a mode of being, a mentality of feeling obligated to intervene for people who need help today and, in all likelihood, will still need help tomorrow and the day after as well.

Your brothers need you; you must persist.