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The Israel
Koschitzky Virtual Beit Midrash
Parashat Hashavua This
parasha series is dedicated ******************************************************** PARASHAT KI TETZE ********************************************************* This shiur
is dedicated in memory of ********************************************************* Dedicated by Craig
Lubner in honour of the first Yahrtzeit of Avi mori
PARASHAT
KI TETZE "You Shall Cut Off
Her Hand" and "An Eye for an Eye" By
The
Problem The law that "You shall cut
off her hand" that appears in our parasha (25:12) is similar to the law of "An
eye for an eye, a tooth for a tooth, an arm for an arm, a leg for a leg, a burn
for a burn, a wound for a wound, a bruise for a bruise" (Shemot 21:24-25) – or,
as formulated elsewhere, "If a person maims his neighbor, then as he has done,
so shall be done to him: a breach for a breach, an eye for an eye, a tooth for a
tooth. As he has maimed someone else, so shall be done to him" (Vayikra
24:19-20). The similarity between the two laws lies in the fact that in both
cases the plain meaning of the text in the Written Law indicates corporal
punishment for maiming or wounding another person, while the Oral Law
establishes that the offender pays only a monetary fine, with no corporal
punishment administered. The Oral Law stipulates that
"One who maims his fellow owes him (monetary compensation) on five accounts: 1.
damage; 2. pain; 3. medical treatment; 4. incapacitation; 5. shame" (Mishna,
Bava Kama 83b). The yardstick for the first
obligation – "damage" – is the extent to which the person's value is diminished
by the injury. This is measured by the change in his sale value on the slave
market. This obligation is derived from the above verses – "an eye for an eye…"
and other parallel sources. The compensation for
incapacitation (i.e., losses incurred by the injured party as a result of his
inability to work during the period of recuperation), as well as for medical
expenses, is set down explicitly in parashat Mishpatim (Shemot 21:19): "He shall
pay only for his incapacitation, and he shall surely be
healed." The obligation to compensate
the victim for "shame" accounts for the humiliation and mental anguish that
accompany the physical pain caused by the injury. This obligation is derived
from our parasha, where we read: "If two people strive
together with one another, and the wife of one of them comes to save her husband
from the hand of him that strikes him, and she puts forth her hand and grasps
him by his private parts, then you shall cut off her hand; your eye shall not
pity her" (Devarim 25:11-12). The Gemara (Bava Kama 84)
derives the obligation of "pain" – i.e., the value of the pain entailed by the
injury - from one of the verses cited above: "a burn for a burn; a wound for a
wound." However, the Rambam (Hilkhot Chovel U-mazzik 1:7) deduces this
obligation from a different unit in our parasha, namely, the verses addressing a
case of rape, where the fine is imposed "Because he has caused her to suffer"
(Devarim 22:29). As noted, the halakhic
tradition, based on the Oral Law, supplants the corporal punishments set forth
in the Written Law for wounding a fellow human being with monetary payment,
which is an uncommonly blatant discrepancy between the Written Law and the Oral
Law. The commentators grapple with
this challenge, reinterpreting the verses so as to resolve them with normative
halakha. For example, Rashbam
(Shemot 21:24 s.v. ayin) and Rav Sa'adia Gaon (as cited by Ibn Ezra Ha-arokh ad
loc s.v. ayin) explain the word
"tachat" ("in place of," as in the expression "an eye in place of an eye") as
referring to monetary payment, and the expression "As he has maimed someone
else, so shall be done to him" as meaning "So (accordingly) shall (a fine) be
imposed on him." Ibn Ezra himself
understands the verses as indicating that the perpetrator deserves to forfeit
"an eye for an eye" if he fails to pay the proper
compensation. Aside from the enormous
textual and linguistic difficulty with the claim that these words in the Torah
refer to monetary payment, it is clear that if the Torah had sought to indicate
the obligation of monetary compensation, it could have done so in a far simpler
and clearer manner. Indeed, nowhere do these verses so much as mention money or
a fine. Clearly, then, the plain meaning indicates a corporal
punishment. The Written Law and the Oral
Law Among the commentators there
are different approaches as to the relationship between the Written Law and the
rabbinical halakhic teachings. Ibn Ezra's consistent approach is that the
halakha accords with the meaning of the verses; he therefore always tries to
interpret the verses in accordance with the halakha as he understands it. At the
opposite extreme we find the approach of Rashbam, who accepts with equanimity
the possibility that there may be discrepancies between the Written Law and the
Oral Law. In such instances Rashbam will not necessarily even address the
relationship between the Written Law and the halakha. Other commentators, most
notably the Rambam and Ramban, take a more moderate approach to this question.
These Rishonim certainly accept the possibility of discrepancies between the
Written Law and the Oral Law, but feel that such instances must be understood
and explained. According to their view, these two levels of Torah are not
identical, but there is a direct relationship and connection between them.
Concerning the extent of possible discrepancies and the types of relationships
between the Written Law and halakha, opinions are obviously
divided. The deviation of halakha
from the plain meaning of biblical verses tends to operate according to the
following three guiding principles: formalization, concretization and
synthesis. 1. Formalization The Written Law describes
the laws circumstantially, in particular instances and actions as they occur
within the Torah's given social reality, or they are formulated such that they
convey the underlying meaning of the halakha's demands upon the person. In
contrast, the Oral Law provides sharply defined laws and precise definitions,
establishing the laws based on their precise fundamental obligations. The Oral
Law converts the practical, exemplary description into a formal, legal
entity. As an example of the
formalization provided by the Oral Law, let us consider the laws of
guardianship. In Shemot 22, the Torah
describes two instances of a pledge being stolen from a guardian. One is, "If a
person gives his neighbor money, or vessels, to watch over, and they are stolen
from [the guardian's] house…" (verse 6). The other is, "If a person gives his
neighbor a donkey or an ox or a sheep, or any other animal, to watch over… and
if it is stolen from him…" (9-11). In the first instance, the guardian can
exempt himself from paying by taking an oath, while in the second instance he is
obligated to pay. The Torah's description in each case focuses on the type of
pledge: movable property as opposed to an animal. In contrast, the halakha makes
the obligation of compensation, in the event that the pledge is stolen,
dependent on the category of guardianship: an unpaid guardian can exempt himself
by swearing, while a paid guardian is obligated to pay. Rashbam, commenting on these
verses (22:6, s.v. ki), proposes an explanation for the distinction between
movable property and livestock, and, while citing the traditional understanding,
he makes no attempt to bridge the gap between the verses and the halakha as set
down in the Oral Law (despite the feasibility of connecting the two). Ramban (22:6, s.v. ki), in contrast,
explains that movable property is usually guarded for free, while animals are
given over to shepherds, who tend them for a fee. Accordingly, the case of
"money or vessels" is depicted, in the familiar social context, as an instance
of free guardianship, while the case of "any animal" is depicted as an example
of paid guardianship. In other words, the Torah describes familiar scenes from
the existing social reality, without noting explicitly the legal characteristic
that is relevant to each case. The Oral Law establishes the laws on the relevant
formal, legal foundations. 2.
Concretization The Written Law presents
lofty principles and demands that are designed to sanctify and elevate the
mundane reality of the world by suffusing it with Divine values. At times, they
are presented as broad, abstract values and principles. The Oral Law applies and
translates the theoretical aspiration into concrete reality, drawing out the
concrete form of the law. An example of halakhic
concretization is to be found in the laws that I addressed in my shiur on
parashat Re'eh: the prohibitions on erasing God's Name and destroying any part
of the Regarding each of these
first two principles – formalization and concretization – halakha maintains the
fundamental, existential nature of the theoretical aspiration expressed in the
Written Law, while broadening or altering its external
form. 3. Synthesis of
Contradiction The Written Law, in
presenting the law in its purest form, will sometimes disregard other principles
and laws which conflict, in reality, with the law in question. The Oral Law
bridges and interprets these seemingly contradictory or conflicting principles,
so as to provide each with its proper place. The first two principles
(formalization and concretization) are implemented at times by the Ramban and
other commentators. The third principle, synthesis, was invoked by my rabbi and
teacher, Rav Mordekhai Breuer z"l, in numerous contexts (for example, in his
article on the Hebrew maidservant, in Megadim 16). Justice and
Mercy Let us return to the matters
of "An eye for an eye" and "You shall cut off her hand." One way of explaining the
discrepancy between the plain meaning of the verses, according to which a person
who injures his fellow is deserving of corporal punishment, and the halakha,
which obligates only monetary compensation, is to suggest that the Written Law
is expressing the attribute of strict justice, focusing on the punishment that
is appropriate in accordance with the severity of the sin, while the Oral Law
introduces the attributed of mercy, which "sweetens" the verdict such that the
perpetrator does not suffer the full measure of punishment. According to this
view, the perpetrator does, indeed, deserve corporal punishment, but such
punishment is too cruel, and therefore it is not actually carried
out. This theory views the law
obligating monetary compensation as a sort of synthesis between the corporal
punishment that is required by the Written Law and the attribute of mercy.
However, this synthesis is quite innovative, since the second element of the
synthesis (we might even say the "antithesis") is not a conflicting source that
deals with a person who injures his fellow, nor even an alternate source that
deals with mitigation of punishment in general, but rather with the general
attribute of mercy. Hence, the explanation already deviates from the synthetic
model that exists elsewhere, in which the synthesis is between two sources that
relate to the same issue. Rav Breuer addresses the
above theory in his article, "Ayin Tachat Ayin, An Eye for an Eye," in Megadim
24, and rejects it for the following reasons: 1.
We find no halakhic
expressions elsewhere of mitigation of punishment arising from the attribute of
mercy. On the contrary, we find expressions in the opposite vein: "Let the law
pierce through the mountain" (Sanhedrin 6b); "There is no room for mercy in
judgment" (Ketubbot 84a). 2.
The Oral Law does,
admittedly, include a system that limits corporal punishment, in reality: not in
the form of a sweeping replacement by another form of punishment, but rather by
placing limitations on the scope of its application. We refer here to the
formal, legal requirements for implementation of other corporal punishments
(death penalty and lashes), the need for clear testimony, a warning, and
acceptance of the warning. Clearly, then, if the halakha in principle were "An
eye for an eye" in the literal sense, then, in order for this punishment to be
implemented, we would once again require clear testimony, a warning, and
acceptance of the warning. This being the case, it is difficult to regard this
form of corporal punishment as being any crueler than lashes or the death
penalty. The Injurer and the
Injured Rav Breuer proposes a new
explanation for the law of damages pertaining to one who injures his fellow. In
his view, the halakha does in fact represent a synthesis, or compromise, between
two considerations: the need to punish the injurer for his act, and the need to
compensate the injured party for the damage caused to him. Corporal punishment
represents the most appropriate punishment for the injurer, 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 injurer –
albeit in an imperfect manner. Clearly, it is not possible
to implement both corporal punishment and a monetary fine, for this would be an
injustice insofar as the punishment meted out to the perpetrator would exceed
the extent of his transgression. Thus we are left with the contradictory values
of punishing the injurer and compensating the victim. The Oral Law mediates and
determines the resolution to this conundrum. The decision is in favor of a
monetary fine, since corporal punishment would negate the value of compensation
to the victim, while monetary compensation still punishes the injurer – even if,
as noted, only partially. According to this
explanation, the Written Law focuses, in the aforementioned verses, only on the
value of punishing the injurer. This value would be fulfilled in the most
appropriate way through corporal punishment, and for this reason the Torah
indeed prescribes corporal punishment. The Oral Law, on the other hand, also
incorporates the value of compensation to the victim, and for this reason
concludes that only a monetary fine should be imposed. Rav Breuer's explanation
solves both problems that he had raised against the alternative explanation. It
should be noted, though, that his explanation, too – like the first one that we
discussed – introduces something new, in that the synthesis that is proposed is
not based on a contradiction between two parallel sources that treat the same
subject, but rather between that which appears in the Written Law and another
value, without noting any defined source for this other
value. The
Solution As we have seen, it is
difficult to regard the obligation of monetary damages as either a formalization
or concretization of the principle of corporal punishment. Hence, the solution
must be sought in the realm of contradiction and synthesis. Rav Breuer adopts
this direction, but in his explanation, as noted, the contrasting or
contradictory element is not anchored in some other source in the Written Law.
However, it seems that such a source can indeed be found. In the Rambam's
explanation of the laws of injury (Chovel U-mazzik 1:5), we find the
following: From where do we know that
what the Torah says concerning [punishment for harm to] limbs, "An eye for an
eye" etc., refers to monetary payment? For it is written [there]:
"A wound for a wound." Yet, the
Torah explicitly states, "If a person should strike his fellow with a stone or
with a fist… he shall pay only for the loss of his time, and he shall surely be
healed" (Shemot 21:19). We thus deduce that just as the expression
"tachat" (in place of) that is said in connection with a wound refers to
monetary payment, so the same applies to the "tachat" that is mentioned
in connection with an eye along with the other limbs. In other words, the halakha
concerning corporal punishment is not limited to cases where there is a loss of
a limb, but includes also a "wound" which may heal. Concerning such wounds (and,
according to halakha, also the loss of a limb), the Torah explicitly obligates
payment for incapacitation and for medical expenses. The implicit contradiction
between paying for incapacitation and medical expenses and being punished "a
wound for a wound" is further clarified by the Ramban (21:24, s.v. ayin), who,
on this point, follows the Rambam's approach: The proof to the teaching of
the Sages [that monetary payment, rather than corporal punishment, is demanded]
comes in what we read previously (verse 19), "He [the attacker] shall pay only
for his [the victim's] incapacitation, and he shall surely be healed." If we
would "do to a person who injures his neighbor as he did" (Vayikra 24:19), then
who will pay afterwards? After all, the attacker also suffers incapacitation and
medical expenses. In other words, if a person
who has caused a wound to his fellow has not only a fine imposed on him for the
incapacitation and medical expenses of the victim, but also corporal punishment
(such that he himself is also incapacitated for some time and incurs medical
expenses), then an injustice will have occurred. Aside from the physical wound
(administered as punishment) and its attendant monetary losses, all of which
equals that which he caused to the victim, he would also pay an unjustified
additional amount as compensation. The Rambam and Ramban
formulate their explanations here as proof for the plain interpretation of the
expression "tachat" as referring to money. However, based on our
discussion above, we may use their words to explain the discrepancy between the
plain meaning of the verses and the halakha as a synthesis. The verses of "An eye for an eye," "A
wound for a wound," and "You shall cut off her hand," all set forth the
punishment that is appropriate for the transgressor in accordance with the
severity of his actions, but they do not take into consideration the needs of
the injured party. The verse, "He shall pay only for his incapacitation, and he
shall surely be healed," on the other hand, addresses compensation to the victim
for the actual monetary losses incurred, but fails to take into account the need
to punish the perpetrator in accordance with the severity of his actions. The
Oral Law mediates this contradiction by exchanging the prescribed corporal
punishment for monetary compensation for damage and shame, in addition to the
compensation for incapacitation and medical expenses. If the value of punishing
the injurer were to be carried out to the fullest extent, then the obligation of
paying for incapacitation and medical treatment would be cancelled, and the
value of compensation to the victim for his losses would be altogether negated.
For this reason, the Oral Law establishes that the value of compensation to the
victim should be carried out in full, while the value of punishing the injurer
is to be carried out only partially, in the form of a monetary fine rather than
corporal punishment. It seems that the Rambam,
too, had this understanding in mind. Above, we cited his words from Hilkhot
Chovel U-Mazzik, chapter 1, law 5. Let us now go back to his discussion of this
topic starting from law 3: (3) That which the Torah
says, "As he maimed his fellow, so shall be done to him," does not mean that he
should be injured in the same way that he injured his fellow, but rather that he
is deserving of losing a limb, or being injured, as he caused. Therefore, he
pays the corresponding damages. For it is written (Bamidbar
35:31), "You shall take no ransom-payment for the life of a murderer": for a
murderer alone there is no ransom payment, but for causing the loss of a limb,
or for wounds, there is a ransom payment. (4) Likewise, that which the
Torah says concerning one who injures his fellow or causes him harm, "Your eye
shall not show pity," means that you shall not have pity and impose less than
the proper amount for payment. Lest you say, "He is a poor man, and he did not
injure him intentionally; I shall therefore have pity on him," therefore the
Torah says, "Your eye shall not pity." (5) From where do we know
that what the Torah says concerning [punishment for harm to] limbs, "An eye for
an eye" etc., refers to monetary payment? For it is written: "A wound
for a wound." Yet, the Torah explicitly states, "If a person should strike his
fellow with a stone or with a fist… he shall pay only for the loss of his time,
and he shall surely be healed" (Shemot 21:19). We deduce that just as the
expression "tachat" (in place of) that is said in connection with a
bruise refers to monetary payment, so the same applies to the "tachat"
that is mentioned in connection with an eye or other
limbs. In law 3, the Rambam's
presentation of the monetary fine as a ransom that replaces corporal punishment
is based on the beraita in Bava Kama 83b, and on the Ibn Ezra's aforementioned
interpretation. However, whereas in the beraita this is formulated as a proof,
Rambam does not use it as a proof; only later on, in law 5, does he ask, "And
from where do we know that what the Torah says concerning [punishment for harm
to] limbs, 'an eye for an eye' etc., refers to monetary payment?" Hence, law 3
comes only to describe the nature of the obligation, while law 5 concerns the
proof for this from the verses themselves. In the teachings of Chazal
(especially Bava Kama 83-84) and the Rishonim (especially Rav Sa'adia Gaon), we
find various proofs that the Torah does not literally mean "An eye for an eye."
However, the only proof from the Gemara that is cited by the Rambam is not used
by the Rambam as a proof, as we have seen. He chooses to bring his own original
proof, which exists nowhere in the Gemara or in the earlier Rishonim: the proof
based on incapacitation and medical expenses. Why? Apparently, because the
Rambam understood the halakha as we have explained it here, but formulated this
understanding in the form of a proof. In Moreh Nevukhim (III, 41),
the Rambam writes: As a general rule, any
person who sins against his fellow man is punished by having the same damage
inflicted on himself. If the damage is bodily harm, then he suffers bodily harm;
if he harmed his fellow monetarily, then he suffers monetary loss… and one who
causes the loss of a limb, should loss a limb; "As he has maimed his fellow, so
shall be done to him." And do not be troubled by the fact that these punishments
are effected in the form of monetary fines, for the intention herein is to
provide an explanation for the verses, and not an explanation for the words of
the Talmud. Nevertheless, I have an
explanation also for that which the Sages teach in the Talmud; this knowledge
can be conveyed only orally. The injuries which cannot be
reproduced to an equal extent, are punishable by monetary fines: "He shall pay
only for his incapacitation, and he shall surely be
healed." The Rambam states here
explicitly that monetary payment is not the literal interpretation of the words,
"An eye for an eye." Otherwise, the Rambam's assertion that he is explaining the
verses rather than the law as set down by the Sages in the Talmud would be
meaningless. Clearly, then, the Rambam understood that there is a discrepancy
between the true meaning of the verses and the halakha. The Rambam notes that his
main intention in explaining the reasons for the commandments is to explain
biblical verses, rather than normative halakha; he has an explanation for
halakha, too, but he will convey this explanation only orally, not in writing.
In other words, the Rambam accepts that there is a discrepancy between the
verses and the halakha, but he has an explanation for the halakha – one which,
apparently, holds some danger, causing the Rambam to conceal it. According to
what we have said above, this is quite understandable: in an instance where the
halakha deviates from the meaning of the verses, it is specifically the verses
which express the halakhic principles and values in their pure state. For this
reason, the reasons for the commandments are expressed more directly in the
biblical verses than they are in the halakha, and therefore the Rambam chooses
to discuss the reasons for the verses. Apparently, the Rambam explains the
discrepancy between the verses and the halakha in our case as explained above.
However, the Rambam understands that any explanation of the principles directing
the discrepancies between the Written Law and the Oral Law can be dangerous,
since it may come out sounding as though Chazal changed the halakha willfully
and purposefully. For this reason, in Moreh Nevukhim, the Rambam merely notes
that he has an explanation, and then immediately goes on to mention
"incapacitation and medical expenses," while in the Mishneh Torah he hints at
his explanation by bringing, as proof of Chazal's interpretation of the halakha,
the contradiction between the obligation of a fine for incapacitation and
medical expenses, on one hand, and corporal punishment, on the
other. (Translated by
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