“An eye for an eye” is arguably the most misunderstood Jewish commandment. Most condemn it as too harsh, some praise it as just, but few cared to actually read it. This commandment applies to a narrow class of situations only rather than to all crimes.
It is indeed odd to imagine that ancient Hebrews diligently pulled out a tooth from someone who kicked out a tooth. Realizing the impracticality of such strictly defined reciprocity, sages reinterpreted the commandment as requiring monetary compensation: a tooth’s value for a tooth kicked out. That, too, ran into practical difficulties: what is the value of a tooth? Obviously, the value of the last tooth is greater than of the thirty-second tooth. A lost tooth doesn’t diminish one’s “reference value” at a slave market. A bruise, which is temporary, doesn’t affect one’s permanent value at all, and so the sages declared the value of a bruise to be a price someone would ask to willingly suffer such a bruise. That definition, too, is unworkable, as a rich man and a poor one would place widely different values on such bruise, thus defying the common legal guidelines. Besides all of that, there is no hint in the Torah that “an eye for an eye” should be understood figuratively, as some sort of compensation. Leviticus 24:19 describes lex talionis as “will be done to him [the offender],” thus refuting any notion of compensation
The difficulty evaporates when we realize that the “eye for an eye” principle only applies to exemplary punishment in a very specific situation. In such rare cases, reciprocal corporal punishment could be reasonably carried out.
The lawgiver makes his intention known by starting the Laws section (Exodus 21) with rules about Hebrew slaves. Now, that’s exceedingly strange. Judaism is about laws and justice, and the Laws section is a centerpiece of the Book of Exodus, literally the central (middle) chapter of the scroll. We would expect the laws to start with major themes, such as life and murder. But eleven opening verses of the Laws detail the rights of Hebrew slaves.
Those rights were exceedingly generous even by nineteenth century C.E. norms, let alone the ancient world’s habits. Slavery of Hebrews was limited to six years. Slave girls were to be treated equally with wives.
What’s the point? In the opening lines, the Laws immediately shock the reader into an entirely different moral reality. The Hebrews must isolate themselves from the old habits: from the barbarity of neighboring tribes, the brutality of Egypt, even from inbuilt human egoism. At this point, Hebrews are commanded to abandon the natural human behavior of exploiting their compatriots to the utmost extent feasible. They are told to care about the most vulnerable members of their society, Hebrew slaves.
It is not that caring for Hebrew slaves is a major civil law, but it relates the major legal principle, “Love your [Hebrew] neighbor as thyself.” That principle is not merely a moral piece, but a fully actionable law.
The Laws section then proceeds with common legal issues.
Murder of a man is generally punishable with execution (Exodus 21:12). In case of premeditated murder, there can be no excuses whatsoever (21:14); the intent to murder a fellow Jew undermines society’s very basis.
There is a legal innovation: manslaughter, voluntary or otherwise, is not punishable; the offender can find refuge among Levites and later in specially designated towns. The only criterion is whether the offender waited for his victim to kill. In Jewish law, generally only actions matter rather than intentions. Why is this case different? Why is one murder different from another? Even the nicer modern legal system punishes for manslaughter. The reason is to be seen in the opening verses on the treatment of Hebrew slaves. In such a compassionate society, unpremeditated murder must be presumed unintentional—purely an accident which does not call for punishment.
The murderer fled to a place of refuge, but what about his clan or immediate family? In barbarian societies, they would be targeted for a vendetta. Jewish law, however, says nothing about the prevention of the vendetta, suggesting that it was non-existent in the society. The absence of collective (clan-level) or extrajudicial retribution testifies to the Hebrews’ high morality and law obedience. The law was not idealistic, but it successfully converted the throngs into a perfect society.
Contrary to the common misunderstanding of “an eye for an eye,” bruises incurred in fights among men are not subject to retribution, but merely compensated. Exodus 21:18-19, “And when [the] men would squabble, and the man will hit his neighbor with stone or fist, and he will not die but lie in bed: If he rise up and walk outside [his house] on a support, then cleansed [from the guilt of murder] will be the one who hit, only gives [for] his idleness and shall treat, treat.”
The period of acceptable illness is unlimited. The lawgiver didn’t forget to specify the period, as it is explicitly mentioned in the following verse on beating slaves.
A good reason for not treating a fighting injury as a criminal offense is that both sides are guilty: they equally participated in the fight. So there is no punishment per se, but merely compensation of lost earnings and medical expenses.
The law is careful to clarify that any squabble suffices to exonerate the offender. There need not be a fight, but merely a squabble.
Now we know the punishment for murder (execution) and any injuries incurred in a squabble (compensation). What about the injuries inflicted without a fight, either by surprising one’s opponent or in a case where one man is clearly stronger than another? In such situations, murder is a more likely outcome. Or, we may apply a fortiori argument: if the injuries incurred in a squabble (where both men are equally involved) are compensated, then that is all the more reason that injuries incurred in a surprise attack should be compensated. Fully conforming to the liberal ideal, Hebrew law discusses only general situations; in contrast, modern law is concerned with specifics, and thus creates a heap of highly specific legislation—and consequently, loopholes.
Next, the law deals with the most tender and valuable members of Hebrew society: pregnant Jewish women. Exodus 21:22, “If [the] men would fight, and hit a pregnant woman, and the fetuses come out, and there will be no harm [to the woman], then he will be fined, fined as the woman’s husband imposes on him, and gives as they lay [on him].” Contrary to anti-abortionists’ views, Hebrew law does not treat a fetus as a human being: killing a fetus is punishable with a fine only, it is not a criminal offense such as killing a human being.
The fine is not specified here, and whether it is large or small is a matter of conjecture. On one hand, the law carefully specifies double and quadruple fines, and therefore leaving this fine unspecified hints that it is insubstantial. On other hand, the law uses strong language: “fined, fined” and “lay on him.” My feeling is that the fine is small, and thus not subject to specification; the strong language refers to the sureness of the fine rather than its amount.
And here the Hebrew criminal law culminates. Exodus 21:23-25: “And if there would be harm [to the woman], then give a soul for a soul, an eye for an eye…” Tit-for-tat retaliation is prescribed only for harming pregnant women.
The legal status of women in Hebrew society vastly exceeded that of men. Maiming a man was punishable by fine only, but similar harm to woman involved harsh retaliation. The legislator recognized that women are inherently more vulnerable than men and need stronger protection.
The law teaches us that men cannot claim weakness: it is their responsibility to be on par with any attacker, as they will not be awarded any compensation beyond the costs of treatment and idleness. Women are not expected to counter attackers except by screaming (and surely must not serve in the army). Society, therefore, punishes even innocent harm to women severely. The law enjoins women from participating in men’s fights: a woman who indecently touches a man involved in a brawl with her husband is punished.
What about the non-pregnant women? Young females are not expected to come close to men; only married women might defend their husbands. Old females were uncommon in antiquity. So the generic case was a pregnant woman.
The legislator makes sure by the following verses that his intention that the weak be protected is clear: “And if a man would strike his slave or concubine in the eye and destroy it, he will set him free for his eye. And if he would kick out a tooth of his slave or concubine, he will set him free for a tooth.” How unusual is that, freeing a slave for merely a tooth! In that era and for three millennia afterwards, masters could kill their slaves with impunity.
This rule is a Jewish version of affirmative action. According to tradition, the rule does not apply to Hebrew slaves. Thus, Hebrew concubines are treated on par with wives (Exodus 21:7-11). Such a concubine should be set free even if her master/husband diminished her allowance of clothes. As she has her own clothes, she is a subject with property rights, and not a rightless slave. Similarly, Hebrew male slave owns his wife and children (Exodus 21:3), and so is not a slave in the regular sense. Hebrew slaves are set free at the end of six-year periods, so in effect they are temporary laborers rather than slaves.
In the case of foreign slaves, their masters own their bodies, but Hebrew slaves possess property rights: if they own their wives, then all the more they own their own bodies. Any injury done to a Hebrew slave’s body should be compensated just as with a free man.
The legislator here solved a curious puzzle: since foreign slaves are their masters’ property, a master cannot compensate his slave for injury like he would compensate a free person. That would be sort of like fining oneself for breaking one’s own instrument. That paradox surfaced in Exodus 21:20-21: murder of a slave is a punishable offense, but any other harm is not punishable, as slave’s body is “his master’s silver.” Freeing injured slaves is both ethical, instructive (to slave-owners), and the only logical way to enforce justice while respecting property rights.
Here is the affirmative action: a Hebrew slave is only compensated for his eye or tooth, but foreign slave is released for a similar injury. The master is, in effect, fined by the tooth’s cost and the entire slave’s cost, respectively. Therefore the fine for harming a rightless, defenseless foreign slave is much larger than for similarly injuring a Hebrew slave.
No system of justice accounts for all possible circumstances. Murdering a slave is a criminal offense (Exodus 21:20), and injuring him permanently is a civil offense (21:26-27), but what about a situation in which the slave dies a considerable time after the beatings? Being dead, he cannot be released on account of his injuries, as Exodus 21:26-27 prescribes. At the same time, he was not exactly murdered, as he did live for considerable time afterwards; perhaps the blows were not lethal but his treatment was wrong? Even in modern courts, which have the benefit of autopsy and other types of expert analysis, there is often no clear-cut answer. And so the legislator sighs, “And if he lives for a day or two, he should not be avenged, as he is [his master's] silver.”
Note that great kindness was prescribed not to the weak in general, but only to the loyal (wives) or submissive (slaves). Nothing in Hebrew law implies a requirement of kindness or even restraint toward enemies, unless those enemies are subjugated.
The law equates hitting (21:15) and abasing (17) one’s parents; both actions are punishable with death. There is nothing specific about murdering them: such crime is covered by the generic rule of executing murderers. The law is a direct consequence of the order in the Ten Commandments that, “You shall respect your father and your mother.” Rabbis effectively abrogated a similar law about unruly children by demanding unrealistically that both father and mother accuse the child in the same tone of voice. In the law, however, abasing any parent is a capital offense; no other evidence is required. The law does not sentence merely for a heated argument: only someone who continually abases his parents is liable to death. How do we know it is a crime to abase any parent rather than both of them? After all, it is said, “his father and his mother.” But compare this law with, “And he who is hitting his father and his mother, shall die by execution” (21:15). Obviously, it is a crime to hit either parent, not necessarily both of them.
Why so harsh a punishment? It’s not because of primitive paternalistic concerns; such concerns would justify execution for insulting one’s father (the head of the clan) but not one’s mother. The law is meant to strengthen society by strengthening the family. The law emphasizes family in the modern sense, rather than clan. By making it unthinkable to abase mothers, the law forced Hebrews to evolve into a mutually respectful society.
Now we see that Jewish law prescribes different levels of retaliation: mild retaliation for offenses between men, harsh tit-for-tat for attacks on women, hyper-compassionate punishment for the wounding of slaves, and exceedingly cruel punishment for offending parents. What about other nations? The Torah deals with two classes of offending nations. One is Amalek: those who harassed the Jews; such nations must be exterminated even in the remotest generations for their past crimes, probably on the presumption that national character doesn’t change and children would readily repeat their parents’ sins if given an occasion.
The second class is those nations which settled the Promised Land before the Jews; such nations would always remember that the land was theirs, would consider the Jews occupiers, and would hate us. Unlike the Amalek, they should not be wiped out as they committed no crime against Jews, but rightfully defended themselves against aggression. Jews must evict the core inhabitants (Exodus 23:31), destroy their places of worship (23:24), and God will efface them (23:23).
This raw justice mercilessly extirpates the offenders so that law-abiding Jews can live comfortable lives. Jewish criminal law is unforgiving: neither the victim nor society can forgive unless the offender is punished severely. Forgiveness paves the way to repeated crimes.
Leviticus 24:19-20 suggests that Jews originally adhered to across-the-board “eye for an eye,” and that rule was later softened to apply to pregnant women only. Jews, themselves recently slaves in Egypt, could hardly have acquired Jewish slaves in the Sinai. The subsequent verses deal with a settled society with houses, pastures, holes in the roads, and so on. Whatever the legislative sequence, at some point Jews were given a law that presumed goodwill among neighbors, protected the weak, and severely punished the wicked.