February 11, 2024|ב' אדר א' ה' אלפים תשפ"ד Ayin Tachat Ayin: The Torah's Perspective of Punishment By Rabbi Jonathan Muskat

Picture a rabbi teaching a class of Generation-Z students about the Torah’s perspective on slavery, or wiping out Amalek or abortion or LGBTQ issues and the Generation Z students tell the rabbi that the Torah is outdated. Slavery is outdated, the idea to wipe out a nation is outdated, the Torah’s perspective on abortion or LGBTQ issues is outdated and the rabbi then must try to perhaps modernize the Torah’s perspective, to make the Torah’s perspective current or to explain why the Torah’s values are eternal and the modern perspective is flawed. Very often we find ourselves conflicted between Torah values and modern values.

 

Now let’s go back 2000 years and picture a rabbi teaching a class of Generation-Z students of Roman times about the Torah’s perspective on an eye for an eye. The rabbi tells his students that when you knock out the eye of your friend, the Torah states, “עין תחת עין,” an eye for an eye, or if you want to get really fancy you would teach your students the Latin phrase “lex talionis” – the law of retribution. If you take out someone’s eye then you lose your eye. And you think you are really fancy because you used one of those Latin phrases. But then one of your students is one of those Jews for Jesus students. He believes in the Torah but he is attracted to Christianity and he tells you about the Sermon on the Mount when Jesus says, “You have heard that it was said, “An eye for an eye and a tooth for a tooth.’ But I say to you, Do not resist one who is evil. But if any one strikes you on the right cheek, turn to him the other also.” He tells you that the Torah preaches the harsh law, but Christianity preaches love. 

 

And then you turn to your Generation-Z students of 2000 years ago and say, “No, you have it all wrong. Yes, the Torah says, an eye for an eye, but it doesn’t mean that we blind someone who blinded someone else. It simply means that you pay the value of an eye if you blind someone. There is only financial compensation but you don’t lose an eye if you blind someone.” Now that’s a more humane way of understanding an eye for an eye, but how can the rabbi do that? The simple reading of the Torah is that if I take out your eye then you take out my eye. How can the rabbis change what the Torah writes and say that the penalty is only financial compensation?

 

The truth is that there are a lot of indications that the Torah cannot be interpreted literally. The gemara in Masechet Bava Kamma provides a number of reasons. For example, the Torah states that “לא תקחו כופר,” you can’t pay financial compensation specifically if you murder someone, indicating that there is financial compensation for torts other than murder. One Biblical scholar explained that in the case of a deliberate assault, the Torah provides for financial compensation – רק שבתו יתן ורפא ירפא- you also must pay for medical bills and time off for work, but the Torah doesn’t legislate exact retribution for intentionally harming someone. The case of עין תחת עין is a case where the injury is unintentional. It’s illogical to conclude then that when someone intentionally harms someone that we should let him off easy with a fine, but if he did it by accident then we should be more stringent and exact retribution – literally an eye for an eye. The idea that we would legislate corporal punishment and retribution also contradicts the value of ואהבת לרעך כמוך and לא תקום ולא תטור, the obligation to love everyone and not to take revenge. The Torah is fundamentally anti-revenge and anti-violence. 

 

Now if it’s true that the simple meaning ofעין תחת עין  in the Torah cannot mean literally “an eye for an eye,” then why does the Torah use that formulation? Many approaches have been suggested to deal with this question, and I would like to share two of these approaches with you. First, there is the practical approach suggested by Rav Breuer. If I harm someone, then I should be punished and the person should be compensated for his loss. Corporal punishment represents the most appropriate punishment for the perpetrator, but it leaves the injured party with no compensation for his suffering. A monetary fine, on the other hand, provides compensation while at the same time punishing the perpetrator, albeit in an imperfect manner. You cannot implement both corporal punishment and a monetary fine, for this would be an injustice as the punishment would exceed the crime. Therefore, the best option under the circumstances is a monetary fine. According to this explanation, the simple reading of the Torah focuses only on the value of punishing the perpetrator, but the rabbinic Law also incorporates the value of compensation to the victim and for this reason concludes that only a monetary fine should be imposed.

 

However, that approach suggests that optimally we believe in an “eye for an eye” retributive justice. Rav Kook’s position represents a different approach. Rav Kook was actually asked this question by a secular Zionist and he responded by providing the following parable: When a son commits a grave offense, the father immediately raises his hand to punish the child but the mother, in full compassion, rushes to stop the father and the son receives a lesser punishment. At the end of the day, the child does not receive corporal punishment but why make a big show of the father almost hitting the son? Because the scene has great educational value for the son. The son needs to realize the severity of his actions and not think that because he received a lesser punishment, then that means that his crime wasn’t so grave.

 

In this parable, the “father” is the simple reading of the Torah and the “mother” is rabbinic Judaism. The point of the parable is that even though the perpetrator only must pay for the damage that he caused, he needs to understand the severity of his sin. In Parshat Mishpatim, the Torah is speaking to the perpetrator, to the one who committed the act and we tell him that you committed a grave offense. You can’t simply pay your way and consider it as if you did nothing. The case here is also one where two people are fighting and there are unintended consequences. A third party gets hurt. And yet, עין תחת עין. We need to consider the severity of the impact of our actions to innocent bystanders. The language of עין תחת עין is used to convey the gravity of the offense, even if it’s unintentional. Professor Emmanuel Levinas explained that  if I perpetrate a loss of limb to another Jew, I truly deserve to have the same done to myself. I must contemplate the profound damage to the quality of life of the victim, his pain and suffering that he is forced to endure for the rest of his life. I have done a terrible thing and I will not be absolved by monetary payment alone. I must beg forgiveness from the victim for what I have done, engage in teshuva, or repentance, and make serious life changes that will ensure a similar act will not be repeated.

 

However, when we speak to the victim, we tell him about the values of ואהבת לרעך כמוך and לא תקום ולא תטור. We tell him about the values of humanity, even with regard to the person who injured him. We understand the desire for retribution which seems to be one of the deepest instincts that we have. But ultimately, we reject that value.

 

There are different theories for punishment. One theory is retributive justice. The goal is to try to rebalance any unjust advantage by ensuring that the offender suffers a loss. The Torah rejects this theory. Maybe God will ensure that the offender suffers a loss, but that’s not how the human-based halachic system operates. We believe in deterrence to justify punishment, and the severity of the language of עין תחת עין points in that direction. We believe in restoration, when at all possible, to make the victim whole. We believe in rehabilitation, wherein the goal is to change the offender’s attitude to get them to come to see that their behavior was wrong. After all, if we harm someone then we are required to ask the victim for mercy and not simply pay for damages. But the Torah doesn’t believe in retribution. The Torah does not believe that others, even those who harmed us, should suffer as a form of retribution alone. We Jews have been victims for thousands of years and the Torah, in promoting a theory of punishment, has conveyed to us how we respond to those who want to harm us – deterrence, restoration and rehabilitation, but not retribution. Secretary Blinken can warn Israel all he wants about dehumanizing others, but we don’t need to turn to him for ethical or moral guidance. We can turn to the Torah. Ideally, we believe in rehabilitation and restoration, and if necessary, deterrence, but we do not believe in retribution. May we continue to uphold our Torah values even in the most trying times.