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My object all sublime
I shall achieve in time
To let the punishment fit the crime
The punishment fit the crime
W.S. Gilbert - "The Mikado"
It's back!! Despite the concerted efforts of so many people to promote peace and tolerance, justice that is just, and a legal system that is humane, the "Dirty Harry" mentality is back. I'm referring of course to the infamous "Lex Talionis", the Latin designation for the concept of "eye for eye, tooth for tooth..." which we encounter for the first time in parashat Mishpatim (Ex. 21:23-25) Commentators and scholars tend to focus on the second iteration of this principle in Leviticus 24:20, but it is no less striking in its first setting.
I was speaking the other day with a teenager, and discussing how he might respond if someone hit him. Without a moment's hesitation, he responded that he would hit them back. There wasn't even a moment to stop and reflect, to consider that each individual situation might call for a slightly different response. No, the response was automatic. I've seen similar responses in lots of teenagers these days, perhaps more evident post 9/11. However, even before that time, it was in increasing evidence.
It's all part of a trend towards literal interpretation and understanding, as much among adults as youth. I've noticed it has become increasingly difficult to teach students of all ages about abstract concepts, to ask them to read our sacred texts with an understanding that literal meanings are not the only ones which can be derived.
It feels good. It feels right. Hurt for hurt, wound for wound, burn for burn, foot for foot, hand for hand, tooth for tooth, eye for eye, and life for life. The idea that justice should be measured--that the punishment should fit the crime. I agree-the punishment should fit the crime. However, a literal understanding of what the Torah suggests is not the way to achieve justice.
If you've read the actual text of Ex. 21:23-25, you'll notice I reversed the actual order. In the Torah, the first statement is "life for life", nefesh takhat nefesh. What's truly interesting about the Hebrew of the pasuk (sentence) is that the verb that precedes "nefesh takhat nefesh" is v'natata--"you will give." It doesn't say you shall "take" (v'lakakhta) life for life. What does it mean to "give" a life for a life, an eye for an eye? Who is doing the giving--the party who caused the injury, the judge, the community?
So, if we're going to take this literally, once could choose to interpret this rule to mean that when a life is taken, one should give (not take) another life. "To give a life" meaning to create a new one, or become a replacement for the dead one. That could sure put a whole new twist on things.
A person who kills another might have to give up their own life, not by their death, but by being required to take the place, insofar as possible, of the party he/she killed. He/she has to provide for the family, take the dead person's job, etc. Not necessarily practical in every case, but it certainly points to a really different way of looking at this concept.
It becomes more complicated when we get to body parts. Not impossible--but complicated. To give a "hand for a hand" could mean that the party causing the injury needs to use their own hand to help and assist the injured party, and thus give them his/her hand as if it were their own.
Imagine a justice system built on that kind of understanding. It doesn't have to mean that we cut off the hand of the party who caused the injury, or take the life of the one who caused the death. No taking need be involved--only giving.
It actually makes sense. The universe needs balance--Gd seems to have ordered it that way. Dark and light, good and evil, night and day, water and dry land, life and death, and, of course, give and take. So it only seems logical that when one takes a life, balance is not achieved by another taking of life--but rather through giving another life. Exactly how that translates into reality is our task, our mission.
Sadly, like the young teen from the other day, and like so many others, we're lazy. We take the easy way out, choosing the simplest literal meaning. Someone kills, we kill them. Someone hits us, we hit them back. Someone hurts or injures us, we injure them.
Such simplistic and literal understandings are not what Gd has asked us to do. It is our obligation to try and understand this in accordance with the Torah's self-proclamation that "lo bashamayim hi" (the Torah is not in heaven, but ours now to try and understand and interpret), and the Talmud/Pirke Avot's "lo alekha" (it is not your duty to complete the task; neither are you permitted to refrain from it). Gd isn't giving us an easy out. It's up to us to figure out how to make sense of all these words given to us in the Torah.
So here's a challenge for you this Shabbat. In these times when war seems imminent, think of ways that one can implement the lex talionis, letting the punishment fit the crime, so that the "taking" of one thing leads not to another "taking" but to a "giving." I wish you an interesting journey.
© 2003 by Adrian A. Durlester
Some Previous Musings on the same parasha
Mishpatim 5761-Change from the Inside
Mishpatim 5760-Chukim U'mishpatim
Mishpatim 5759-Eid Khamas-Witness to Violence
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