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An Eye for An Eye Redux

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.