Baba Kamma 83B

Symposium Between Talmud and Torah: The Law of Talionis

Baba Kamma 83b

Mishna already given the value of his hand or the value of his leg [under "depreciation"] "Deg­ One who injures a fellow man becomes liable radation"—is figured entirely according to to him for five items: for depreciation, for who is offended and who causes the offense. pain, for healing, for loss of time, and for degradation.* How is it with "depreciation"? Gemara If he put out his eye, cut off his arm, or broke his leg, we consider him [i.e., the injured Why [monetary compensation]? God said person] as if he were a slave being sold in the "An eye for an eye"[Exodus 21:24]: Why not market place, and a valuation is made as to take this literally?—Not so; since it has been how much he was worth [previously], and taught: Is it the case that where he put out his how much he is worth [now]. "Pain"—if he eye, we put out his /"i.e., the offender's] eye, or burnt him either with a spit or with a nail, where he cut off his arm, we cut off his arm, or even though on his [finger]nail which is a where he broke his leg, we break his leg? [Not place where no bruise forms, we estimate so, for] Torah states: "One who strikes a how much a man similar to him would want human being...and one who strikes a beast..." to be paid to undergo such pain. "Healing"— [Leviticus 24:21][teaching that] just as in the if he has struck him, he is under obligation to case of striking an animal compensation is to heal him. Should ulcers [meanwhile] arise, if be paid, so also in the case of striking a man as a result of the wound, he [i. e., the offender] compensation is to be paid. And should this is liable, but if not as a result of the wound, [source] not satisfy you, note that the Torah he is exempt. Where the wound was healed states: 'You may not accept ransom for the life and reopened, he is still under obligation to of a murderer who is guilty of a capital crime; heal him. If, however, it had completely he must be put to-death," [Numbers 35:31] healed, [and subsequently reopened], he is [teaching that] it is only for the life of a mur­ not obligated to heal him. "Loss of time"—we derer that you may not take ransom, whereas consider him [Le., the injured person] as if he you may take ransom for principal limbs, were a watchman of a cucumber; for he has which do not restore themselves. To what [two textual instances of] strikes does it [i.e., the 'Translated from the Hebrew by Ari Ackerman and Zvi Zohar of the Shalom Hartman Institute in Jerusalem. Bold baraita] refer? Should you say [that it refers] text is biblical verse; italic text is baraita. Bible verses follow the New Jewish Publication Society translation (1985). to "One who strikes a beast shall make res-

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titution for it; but one who strikes a human of injury, rather than to derive [the law of] being shall be put to death" [Leviticus injury from [the law governing the case of] 24:21]—this verse refers [not to injury but] to murder. But the contrary could be argued murder. The reference must therefore be to [with no less force]: it is proper to derive [the this text: "One who strikes a beast shall make law of injury inflicted upon] man from [an­ restitution for it: life for life,"[24:18] which other case of attack upon] man [i.e., murder] is immediately followed by "If anyone maims rather than to derive [the law of injury in­ his fellow, as he has done, so shall it be done flicted upon] man from [the case of injuring to him [a break for a break, an eye for an eye, an] animal! Precisely [to resolve] this was the etc.][24:19]. But [the term] "strikes" is not point of the statement "Should this [source] used [in the latter text]?—the baraita is com­ not satisfy you, note that the Torah states:You paring [not the term but the] events of strik­ may not accept a ransom for the life of a mur­ ing; just as the "striking" mentioned in the derer who is guilty of a capital crime; he must case of an animal entails monetary payment, be put to death,' [Numbers 35:31][teaching so too does the striking of a man entail mon­ that] it is only for the life of a murderer that etary payment. you may not take ransom, whereas you may But surely it is not written: "If anyone kills take ransom for principal limbs, which do not any human being, he shall be put to restore themselves." death"?![24:17]—this refers to monetary But was the purpose of "You may not compensation. On what grounds [do you take accept a ransom for the life of a mur- it to refer] to monetary compensation? Why derer"[35:31] to exclude the case of principal not say that it really means capital punish­ limbs? Was it not intended to indicate that ment?—Not so; first, because it is im­ God says, Do not make a culprit subject to mediately followed by "One who strikes a two [punishments], that is, that you should beast shall make restitution for it" [which not together take from him monetary com­ refers to monetary payment][24:18], and fur­ pensation and put him to death?—[No;] That thermore, because soon after it is written "as is derived from the verse, "as his guilt war­ he hath done so shall it be done to him" rants,"[Deuteronomy 25:2] [which indicates [which once again refers to money][24:19] that] you can make him liable only for one thus proving that it [i.e., "so shall it be done"] punishment for one crime, but cannot make means monetary compensation. him doubly liable for one crime. But why the statement, "Should this But still, was this verse not requisite to [source] not satisfy you"? [Why should it not teach [its plain meaning;] that God forbids satisfy you?]—The difficulty which further you to take from him monetary compensa­ occurred to the Tanna was as follows: What tion and release him [from the capital pun­ is your reason for deriving the law of a man ishment]?—If so [and that was all the verse injuring a man from the law governing the intended] God would have written, 'You case of a man injuring an animal? Why not may not accept a ransom for the life of a derive it from the case of a man killing a murderer,"[Numbers 35:31] why then write man!? To this one might answer: It is proper "for the life of a murderer"?—to indicate that to derive [the law of] injury from other cases it is only for the life of a murderer that you may

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not take ransom, whereas you may take ran­ should monetary compensation be taken [but som for principal limbs, which do not restore in all other cases, one should literally put out themselves. Now that 'You may not accept a the injurer's eye]. [To that reply we answer:] ransom" [implies all this], why do I require Did not the Torah state, 'You shall have one [the section of the baraita regarding] standard" [24:22] implying that the standard "strikes...strikes"[Leviticus 24:21]? Be­ of law should be the same in all cases? cause, if [only] that verse [existed], I might But, what is the difficulty even in that case conclude that [it is optional:] if he wishes he [of a large eye and a small eye]? Why not say, must [literally] return an eye, and if he wishes that for eyesight taken away the divine law he must return the value of an eye; we there­ ordered eyesight to be taken away from the fore are informed by [the case of] an animal offender? [84a] For if you will not say this, that, just as the striker of an animal must pay how could capital punishment be applied in money, so too the striker [i.e., injurer] of a the case of a dwarf killing a giant or a giant man must pay money. killing a dwarf, seeing that the Torah says, It has been taught: R. Dosthai b. Judah 'You shall have one standard" implying that says: "An eye for an eye"means monetary com­ the standard of law should be the same in all pensation. You say Monetary compensation"; cases—unless you say that for a life taken but perhaps it is not so, but actually [putting away Divine Law ordered the life of a mur­ out his] eye is meant? What then will you say derer to be taken away? Why then not simi­ [in a case] where the eye of one was large and larly say here too that for eyesight taken away the eye of the other small—for how can I in the Divine Law ordered eyesight to be taken this case call it "an eye for an eye"? You might away from the offender?53 reply: Only in such a case [of unequal sizes]

Vol 2*No 1*1991 47 Dialogue between a Philosopher and a Talmudist

Y: There are big issues in this section, aren't Y: I think you might be right. Look at the anal­ there?* ysis of pain and suffering.1 The measure is z: Forget the big issues. Let's look at the text. what an individual would accept in order to endure the same degree of pain. This is a Y: Right. The Mishna says that there are five types of damages in every case of injury to a metaphorical market standard, because no person. But these categories are rather prim­ transaction of this sort would ever occur— itive. Take the first, depreciation. How do we except between m'shuga'im. But this means apply this when we no longer have a market that an individual who is not used to pain for slaves? would recover more than one who is inured to pain. Is this fair? z: Depreciation measures what I understand lawyers to call "loss of earning capacity." The z: Note that the text refers to "a person similar present value of a permanent loss is meas­ to him." This means similar with regard to ured in how much a person can claim on the pain. You are objecting too quickly. market for his service. Y: Perhaps, but you cannot deny that class sta­ Y: Do you think we should take seriously a tus enters into the analysis of "degrada­ passage in the Talmud that is based on slavery tion"—the injury to self-esteem defined as and slave markets? the fifth category of damages. Considering "who is offended and who causes the offense" Z: On the contraiy. Talking about the market seems to imply that the status of the parties value of an individual is modem. That is the determines the injury. But how does it work? way American experts on law and economics Is it worse to be injured by a rich man or a analyze damages. But I wouldn't defend it on poor man? the ground that the analysis is "modem." The rabbis speak in the context of their own real­ Z: If someone of higher status injures someone ity. What they are trying to explain is their of lower status, the injuiy to self-esteem car­ understanding of how to measure "loss of ries a double meaning. In addition to the earning capacity." Don't you think that some­ physical pain, the victim suffers from a sense one who would command a higher price on of social degradation. He or she becomes the the market should receive greater compen­ prey of those with greater power. sation when he or she is injured? Y: At first blush, this principle seems to run afoul of contemporary notions of equality before the law. But perhaps the Talmud pro­ This dialogue was overheard recently at the Shalom Hartman Institute in Jerusalem; the talmudist is Zvi Zohar. ves the translation oiBabaKamma 83b preceding in this issue.

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vides a foothold here for a theory of affirma­ Z: How do you know that compensation is tive action. The weak and the poor require davka monetary compensation? Why isn't special protection. Today, I suppose, we inflicting an injury a like form of compensa­ would apply this principle intuitively in think­ tion? Perhaps the distinction between torts ing about injuries suffered at the hands of the and criminal law is not so clear in the Talmud. police or other state employees. Let's start with a simple question: Why, in the Z: Yes, I see you are thinking about the inner biblical framework, should there ever be meaning of the Mishna. compensation for a human injury? Y: I still have a problem with the fourth cat­ Y: Is there no reference in the sources to human egory. Assume that a doctor loses his right injury and the right to collect damages? eye. He cannot perform operations as well. Z: Indeed, at the level of p'shat—the plain He would obviously be able to garner less on meaning of the text—there is no compensa­ the slave market. tion of human injury because the Bible seeks z: Right. to place the human person beyond the cate­ Y: But why should he also recover damages as gory of monetary compensation. Previously, if he were the simplest form of laborer, like the family of a murder victim could choose someone who watches cucumbers grow. His between blood money and the life of the damages are already expressed in his depre­ murderer. The Bible declared this practice ciated value on the market for his services. unacceptable. Y: And this attitude toward the human person Z: The Gemara brings up this question, and maybe we'll get to it. But I thought you were might inform not only the law on murder but primarily interested in the interpretation of also the law on injury? the biblical passage "an eye for an eye." Z: That could be a reasonable reading of Exo­ dus 21 and Leviticus 24. But the Mishna pro­ Y: I am. Why does the passage show up in the analysis of tort damages? Doesn't the princi­ ceeds on the assumption that this is not the ple, "an eye for an eye," address the problem case: for injury as opposed to murder there of criminal punishment? should be compensation. The Gemara wres­ tles with the biblical passages in order to Z: What do you mean by tort damages? show that a convincing analysis actually sup­ Y: In modern legal systems, if A sues B as the ports the Mishna. result of an injury, A cannot demand that B Y: But the first passage that comes up in the suffer an injury. The most he can demand is discussion holds: "One who strikes a human damages, compensation. That is what we call being...and one who strikes a beast..." What torts. But if the state prosecutes B for crim­ is this? A biblical passage? inally causing the injury, then perhaps the state should inflict a comparable injury in z: No, it is a baraita, an authoritative text con­ order to teach him the significance of what temporary with the Mishna but not part of it. he has done. This baraita rejects a literal reading of "an eye for an eye" on the basis of an analysis of two biblical passages. 2Baba Kamma 85b.

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Y: Which two passages? Y: Does this mean that "life for life" always z: One reference is clear and one, not so clear. means compensation, that capital punish­ The second, Numbers 35, holds never to take ment has been interpreted away? blood money for a murder victim. The first Z: No. The point is that in this context, the seems to invoke one of a number of passages phrase "life for life" must be understood as in Leviticus 24 that refer to striking men and referring to compensation. If this style—A striking animals. Note that after the baraita for A, B for B—means compensation when ends with the words "which do not restore referring to the life of an animal, it is plaus­ themselves," the sages in the Gemara at­ ible to read it metaphorically throughout tempt to clarify which verses in Leviticus are Leviticus 24. employed in the baraita. Y: If that argument is so clear, why do they have Y: Why is this such a big problem? to invoke the passage from Numbers 35? z: Some passages in Leviticus 24 do not support Z: That is what the Gemara asks. The problem the baraita, for example, Leviticus 24:21: is why one should infer principles about "One who strikes a beast shall make restitu­ human injury from rules about animal injury. tion for it...but one who strikes a human It might be the case that the proper distinc­ being shall be put to death." tion is between everything human and every­ Y: That is pretty clear evidence, is it not, against thing animal, in which case you could the stand of the Mishna. persuasively argue that the Bible really Z: It all depends on how you read the word means that for human injury, there is no "strike" [makkeh]. If you read it as kill, there compensation—only a reenactment of the is no conflict. injury. Y: But the more telling passage in verses 18—19 Y: Yes, and there is another argument for keep­ holds: "If anyone maims his fellow, as he has ing the law of human injury totally distinct done so shall it be done to him." That clearly from the law of animal injury. Human dignity supports the plain reading of the Bible as is inviolable, and therefore injuries to human requiring as actual taking on "an eye for an beings should not be reduced to something eye." How do you get around that? akin to harming an animal. Holding that com­ pensation is possible for injuries to the hu­ Z: I don't have to get around it. But I will explain man body depreciates the human being and to you what the rabbis of the Talmud seem to treats him as a mere body, as a piece of be saying. They argue that this passage property, damages to which can be corrected should be understood in the context of the preceding verse 18: "One who strikes [at the by the payment of money. I heard Ari Acker- life of {makkeh nefesh)] a beast shall make man [the translator of Baba Kamma 83b in restitution for it: life for life." It is clear that this issue] make this argument here at the Beit Midrash. the phrase "life for life" is used metaphori­ cally in this context. It would be off the wall Z: Ackerman might be right that this was the to say that if somebody kills an animal, his life conception of human injury that informed should be taken. the biblical text. Many scholars think that the

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Bible saw the human person as a psycho­ from Numbers 35 prohibiting the taking of physical unity, created in the Divine Image. blood money for murder. Y: The Bible would then be holding to a more Y: But that verse does not say anything about radical notion of human dignity than do the compensation for injury. rabbis of the Talmud. But note the im­ Z: The sages of the Gemara read it as a negative plications of this argument. To serve human pregnant. Do not take money for life implies dignity, the law would require that the injurer that you may take money for less serious be maimed as the victim was maimed. Does injuries. that serve the purpose of affirming human Y: May or must? dignity? Z: Once again, that is the question raised in the Z: That depends on where you place the locus Gemara. The question is put: "Since we have of human dignity. Under the biblical model the verse 'You may not accept ransom for the of the human person, it serves precisely to life of a murderer....' what do we gain from affirm human dignity. The rabbis, however, this passage on striking men and animals?" tended toward a dualistic picture, identifying The point is that Leviticus 24 resolves the the Divine Image in humans as pertaining to problem of may or must. Numbers 35 seems the soul or the spirit. Given that framework, to recognize an option; the analysis of "an eye it becomes reasonable to regard murder a- for an eye" turns out to be necessary in order lone as radically incommensurate with mon­ to eliminate the option and require compen­ etary compensation. "Mere" bodily injuries sation. are categorized with damages to animals, not Y: The great paradox is that the Talmud re­ as involving an affront to human dignity but quires the passage "an eye for an eye" in order as valuable by market standards. to make the case for monetary compensation Y: But as a textual matter, what should convince of human injuries. An apparently contradic­ us that a law about killing animals should tory passage turns out to be necessary sup­ inform our position on injuring humans? port for what appears to be the right con­ Z: Your English conceals an interpretation. clusion. The better way to put the question is this: Z: How do you know it is the right conclusion? Should the law of "striking" animals inform Y: I do not know, but I refer you to the argu­ our position on the consequences of "strik­ ments of our colleagues Enker, Gerstein, ing" humans? However you put the question, Novak, Byrd, and Malamud-Goti. They bring it seems that within the framework of Leviti­ a level of understanding to this discussion cus 24, the issue is irresolvable. That is why that eludes me.s the sages in the baraita bring in the verse

Vol 2*No 1*1991 51 Lex Talionis: The "Plain Meaning" of the Text

Arnold Enker

It is fair to say that no biblical text is more true deeper meaning of the biblical text, as it widely known and has generated more con­ was originally intended and always under­ troversy than the passages dealing with the stood. legal response to physical injuries inflicted by The Talmud text before us adopts neither one person upon another. The biblical text of these extreme viewpoints. To the rabbis enjoins the courts to impose the sanction of who transmitted and developed the Oral talion—eye for eye, tooth for tooth, etc. Our Law, the biblical text was ambiguous, per­ Mishna text requires the tortfeasor to com­ haps even deliberately so. It was capable of pensate the injured party financially for his sustaining both interpretations, namely, economic injuiy, such as loss of earnings and physical retaliation of injury for injury and earning power and medical costs, and to pay monetary compensation. The task of the him damages for pain and suffering, includ­ Oral Law was to choose the preferable solu­ tion between these two textually viable op­ ing any shame inflicted. tions. Writers have long debated the relation­ The Talmud adduces textual support for ship between the biblical text and the Mish- both interpretations. The Hebrew preposi­ naic rule of monetary compensation. Some tion tachat, which is translated in this context contend that the biblical command to impose as "for," often means "in place of or "in sub­ the sanction of talionis was intended to be stitution for" in the sense of replacement and understood literally. The court should im­ compensation,1 thus furnishing support for pose upon the tortfeasor the same injury that the interpretation adopted by the Mishna he inflicted upon his victim. Later genera­ tions of rabbis, perhaps as part of a process that a financial award is to be imposed. But of gradual humanization and amelioration of this argument is by no means conclusive. The the harsh biblical law, changed this law to term tachat is also used in the case of inflict­ require money compensation in its stead and ing the death penalty to mean "for" in the "interpreted" the biblical text, rather freely sense of "in response to" or "in retaliation and liberally, to accord with their more hu­ for": "But if another misfortune ensues, the 2 mane ideas. Others have insisted, no less penalty shall be life for life." firmly, that the Mishna's rendition of the Analogies, too, can be drawn in both direc­ biblical rule, monetary compensation, is the tions. If one analogizes the case of inflicting 1 E.g., Genesis 4:25: Adam knew his wife again and she bore a son and named Arnold Enker • Faculty ofLaw,Bar-Ilan University, him Seth, meaning "God has provided me with another Ramat Gan, 52100 Israel. offspring in place of Abel," for Cain had killed him. 2Exodus 21:23.

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bodily injuries upon a person to that of in­ Our passage also has resort to moral argu­ flicting physical injuries upon an animal, then ments. Literal application of the law of retal­ monetary compensation would seem to be iation could yield unjust results. The the proper sanction. On the other hand, perpetrator and the victim may have differ­ comparison of the case of maiming a person ent pain thresholds. Loss of a particular limb to that of killing a person would suggest that or organ might be more injurious to the one literal retaliation is the intended meaning. than to the other. Once again, these argu­ Which is the preferable analogy? Should we ments are not regarded as conclusive, because take into account the nature of the victims in it is possible to offer various counterargu­ each case, equating killing and maiming ments, as, in fact, the Talmud does. when done to persons? Or is the better Ultimately, it is the combination of argu­ choice to consider the nature of the injuries ments that determines the choice. The pre­ and deal similarly with injuries to persons and ferred analogy is that between less than fatal to animals, leaving the killing of persons to injuries to persons and injuries to animals be treated differently, as a special case? Nei­ rather than that between killing a person and ther choice of analogy is absolutely conclu­ injuring him. And the rule forbidding accept­ sive. One may prefer one analogy or the ing ransom payment for killings supports the other. There can be no single incontrovert­ conclusion that such payment is acceptable ible answer to this question. in the case of lesser physical injuries. It The textual argument is ultimately re­ should be noted that these two arguments are solved in our passage by resort to a distinct essentially one, or at least two different as­ source, that is, to a "third text." The Bible pects of a single position. Murder is sui gene­ commands us not to accept ransom payment ris. for capital murder, perhaps thereby suggest­ Our analysis of the talmudic treatment of ing that it would be proper to accept such this problem of interpretation of the biblical payment for lesser injuries. Though forceful, text suggests that we would be in error if we this argument also is not irrefutable. Argu­ sought to understand the law in terms of ment from negative inference is never con­ contemporary legal concepts. The debate clusive. There is always the possibility that whether the "true" meaning of the text is the local concerns caused the special stress, with­ literal interpretation or that accepted by Oral out yielding an inference that opposite con­ Law evokes the sharp distinction in modern clusions were intended for other cases. law between torts and criminal law. The for­ In the final analysis, the choice is between mer is a matter of compensating injuries and arguments that are persuasive to varying de­ concerns the relationship between individu­ grees, not those that are conclusive. In our als. The State, which represents the commu­ case, the argument from the mandate forbid­ nity at large and its broader range of interests, ding the taking of ransom for capital murders has no particular concern in the civil matter is weighty, especially against the background other than to provide a forum in which to of the clearly unique place occupied by mur­ resolve the essentially private dispute be­ der in the biblical law, even though it is not tween the tortfeasor and the injured party. irrefutable. The criminal law, in contrast, relates to com-

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munal interests. Its goals are punishment what weakened. But that is a price worth and the prevention of additional crimes. paying, considering that the alternative is to But this distinction between torts and deny the victim all compensation for his inju­ criminal law is not so sharply demarcated in ries. Only in the case of murder is the option biblical law. Tortfeasors and murderers have of compensation, even (perhaps especially) both violated God's law, expressed in nega­ byway of ransom {kofer), rejected. To allow tive biblical commands. Although the dis­ the option of money payment would suggest tinction between punishment and com­ an inappropriately commensurate equality pensation certainly exists, both are sanctions between life and money. for lawbreaking. God's command not to do This insight into the essential unity of re­ injury is the primary norm. Its authority and taliatory physical punishment and compensa­ force exist prior to and independent of what­ tion in the biblical scheme further illumines ever particular sanction may be invoked for the distinction between biblical and contem­ its violation. porary law. Biblical law forbids imposing Both the initial ambiguity of the biblical both sanctions. The biblical passage calling text calling for taliation and the Oral Law's for punishment "as his guilt warrants" is un­ technique for resolving that ambiguity sug­ derstood to limit the sanctions to a single gest a more intimate connection between the response.4 Contemporary notions forbid­ two possible interpretations—retaliating ding double punishment would not preclude against the perpetrator versus compensating the imposition of both criminal penalties and the victim—than would exist in our current a civil judgment in tort, because these are legal system. Compensation and retaliation completely separate responses and have are different responses to the same violative nothing to do with each other. Not so in the behavior, but they each stand at different Oral Law: both are responses to a violation points along this single continuum. Just as of the biblical primary norm. criminal penalties atone for the wrongdoer's The biblical law of taliation appears not sin, monetary compensation is also a form of merely in relation to the infliction of physical ransom payment to atone for wrongdoing, injuries by a tortfeasor but is also recorded in known as kofer in the talmudic text.3 the case of false witnesses. In certain circum­ Monetary compensation has advantages stances, such witnesses are to be punished by over corporal punishment in that it combines inflicting on them the same injury as they the two purposes. It compensates the victim would have caused to be inflicted on their for his injuries and alleviates his suffering at intended victim. "You shall do to him as he the same time as it atones for the per­ schemed to do to his fellow...life for life, eye petrator's guilt. That may be a likely reason for eye, tooth for tooth, hand for hand, foot why it is to be preferred. Still, it cannot be for foot."5 This law cannot have contem­ gainsaid but that by combining these two plated compensation of the victim for his aspects in a single mode, each may be some- injuries, because it envisages situations in which the perjury was uncovered before any 3In the case of the goring ox that kills a person, the Talmud considers whether kofer iskappara ormammon and concludes 4Deuteronomy 25:2. that all agree it is kappara. E.g., Makkot 2b. 'Deuteronomy 19:19-21.

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penalty was imposed on the witness's in­ passage. In this note he stressed the educa­ tended victim. Punishment alone is the cho­ tional function of the law. Punishment sen mode.6 serves to instill in the hearts of people de­ Now, in the case of perjurious witnesses, testation of the ugly criminal act, beyond the biblical text does not use the preposition instilling fear. The law acts more as a moral tachat, which as we have seen carries two force rather than by way of its material con­ possible meanings. Instead of 'ayin tachat sequences. He continues: 'ayin, the Bible says 'ayin b"ayin, and simi­ Perhaps, also, this is the same in the matter of "an larly for life, tooth, hand, and foot. These eye for an eye," for the intention is to teach the two different usages would seem to support punishment in order to instill in the hearts of the our suggestion that the primary text calling people appreciation of the evil, and to this end it is proper to adopt a strong phrasing....7 for taliation for physical injuries ('ayin tachat Retaliation has a certain apt quality that is 'ayin) has deliberately chosen a phrasing that absent in conventional institutionalized pun­ is susceptible of more than one meaning. ishments. It expresses vividly the inherent When only one meaning is intended, namely connection between the crime and its punish­ physical punishment as in the case of false ment. As such, it conveys a strong educa­ witnesses, a different usage is chosen. tional message. From that perspective, This difference between the biblical law compensation of the victim for his injuries and our contemporary law is more funda­ would seem to be more akin to retaliation mental than merely the difference between than some conventional punishments. It criminal law and torts. Contemporary law would not be too much to suggest that when would never seek to achieve that multiplicity the educational message of the kofer pay­ of meanings that inheres in the ambiguity of ment registers in the heart of the tortfeasor, the biblical text. Indeed, it would regard such he achieves atonement for his sin. ambiguity as a defect in the law. Positive law Phrased in terms that convey this range of aspires to such precision and clarity of mean­ possible meanings, the law allows for com­ ing as is humanly possible. It seeks a single pensation of the victim for his injuries all the clear meaning for its texts. The biblical cor­ while communicating a sense of moral out­ pus, however, is not a modern legal text. It is rage over the injurious act. So the law seeks a literary document that conveys multiple to combine many goals in one: assisting the levels of meaning and application. Its capac­ ity to be understood on different levels con­ injured party, reconciliation of the tortfeasor and his victim, and reconciliation with God. stitutes strength, not weakness. A system of religious law would not miss the A popular biography of the late revered opportunity to combine such objectives.^ Chazon Ish reports that, as a young man, he recorded a note to himself concerning our

6See above note 4. This was emphasized further in that portion 7Shlomo Cohen (ed.), Pe'er haDor Vol. 3 (Jerusalem: B'nei of the passage which was deleted above: B'rak, rep. 1970), p. 139 n. 30. Thus you will sweep out evil from your midst; others will hear and be afraid, and such evil things will not again be done in your midst. Nor must you show pity: life for life...

Vol 2*No 1*1991 55 Compensating for Injuries to Persons

Robert Gerstein

The question presented is how the biblical 2. Arguments that money compensation is the appro­ text which demands "an eye for an eye, and a priate means of dealing with injuries to the person, tooth for a tooth," can be reconciled with the though not for the taking of human life. Mishna that calls for money damages in the The first argument (first here, but notably case of one person injuring another. not first in the talmudic discussion) seems the We might expect that the answer lies in an more significant for at least three reasons: insistence that we be humane in our dealings First, the whole idea of eye for an eye is one with others. It strikes us as inhuman treat­ of equalizing: giving like for like and thereby ment deliberately to put out another person's somehow restoring the balance of justice. eye or cut off his hand. We are appalled at Second, the concern for equality is one that the savagery of systems which still do such we share with the authors of the Talmud. We things. too concern ourselves with the proportional­ Such actions seem to be "inhuman" in two ity of punishment to the offense, and dispro­ senses. First, because they involve the degra­ portion to the offense is one of the factors dation of the person maimed. Such treatment that can cause a punishment to be con­ signals that fact that we no longer regard the demned as cruel and unusual. So, for exam­ person we deliberately and cold-bloodedly ple, our Supreme Court has ruled out the maim as a fellow human. Second, the act of death penalty for rape on this basis. Finally, maiming another is an act of inhuman cru­ this approach condemns maiming as wrong­ elty: it falls below the level of conduct which ful, and in that respect too is in accord with we normally denominate as "human." In the the contemporary view. United States, any such disfiguring affliction When the arguments from the inequalities imposed by governmental authority would be worked out by maiming are examined, how­ held to be "cruel and unusual punishment." ever, they do not seem very powerful. First, But we find no such concerns in Baba there is the argument that literal eye for an Kamma 83b. Instead, we have these two gen­ eye treatment will not lead to equality be­ eral kinds of arguments: cause eyes vary in size. The eye of the at­ 1. Arguments suggesting that maiming is wrong be­ tacker may be larger than that of his victim, cause it leads to inequality. and it would be unfair to put out the large eye in retaliation for the smaller. The answer to this argument given in the passage seems Robert Gerstein • Santa Monica, CA 90401 (for­ merly of the Department of Political Science, Uni­ decisive: the core of the retaliation would be versity of California at Los Angeles). "eyesight for eyesight," and the difference in

56 Vol 2*No 1*1991 A Journal of Philosophy and Judaism Robert Gerstein

eye size no more leads to inequity than inflict­ sable with money damages hinges upon this: ing capital punishment on a giant for killing which is the more appropriate analogy for a dwarf. injury to the person, the killing of persons, or The next argument is also one arising from the doing of injury to animals? the fact that people are naturally unequal to If the analogy of murder is appropriate, one another in physical condition. It asks, for then, as with murder, which requires the example, how the requirement of an eye for death penalty, actual retaliation must be im­ an eye can be applied to the case of a blind posed for injuries to others. If the proper person putting out the eye of a sighted per­ analogy is to injuries done to animals, then son? Again, the answer seems decisive. money damages are appropriate. The text There are many rules that cannot be applied comes down (not without hesitation and ob­ in every imaginable case. This does not mean jections) on the side of the permissibility of we must discard the rule entirely. Rather, we money damages for human injuiy. The anal­ should apply the rule insofar as it is possible ogy between injuries to animals and those to to do so. people is accepted as the more apt. The last argument from equality seems the Much of the argument over the choice of most powerful and the most connected with analogy hinges on the use of particular words our own humane concerns. It raises the point in the relevant passages, but there is a moral that a person whose eye is put out or whose issue underlying the discussion as well: can it hand is cut off may not be able to survive the be right to treat injured humans in the same maiming and may die. This would mean tak­ way as we treat injured animals? Is there ing "life and eye for eye." The answer given some degradation of human value involved to this objection is plausible, though callous. in accepting money compensation for human It is that we must determine beforehand injuries as we do for injuries to cattle? The whether the wrongdoer can survive the discussion makes it clear that in allowing maiming, and then carry it out if only if we monetary compensation for injury to a per­ believe that he can. Responding to the worry son or loss of human organ, we are treating that our prediction that he has the capacity the human body just as we treat the bodies of to withstand this treatment may be wrong and animals. he still may die, Abaye commented, "[I]f he The Gemara points up the notion that the dies, let him die." The law cannot be evaded requirement of capital punishment for mur­ just because there is some risk of death, pro­ der establishes the uniquely valuable charac­ viding that risk has been weighed before­ ter of human life by insisting that it is not hand and determined not to be excessive. fungible with anything but human life. But It is the second set of arguments, those how then can money compensate for injuries which justify money damages rather than to humans? Are we not degrading the human condemning the alternative of maiming, body from its status as the uniquely valuable which unexpectedly seems the more mean­ image of God, and thereby relegating people ingful. Here, the basic question as to whether to the level of animals? injuries to the person are properly compen­

Vol 2*No 1*1991 57 Robert Gerstein S'VARA

The Gemara suggests the point, but does ing the offender as a one-handed slave (be­ not confront it directly. It does, however con­ cause the offender is an animal!) it is the child tain a suggestive discussion of a related issue which will have to be valued as a slave, and of degradation, a discussion which draws on the father objects to the degradation. The the provision in the Mishna requiring that the answer given to the father is, "What right injured party be evaluated as a slave to calcu­ have you to deprive the child of the payment late one element of compensation: "depre­ which would belong to it?" The father retorts ciation." that he will repay the child when he comes of Depreciation is compensation for the dim­ age. We are not told what the court finally inution in value of the injured person's body decided. because of the injury. The Mishna states that The point, here, however, is that the story this element is to be valued by considering shows a clear awareness of the degradation the injured person a slave, and then compar­ that might arise from treating people as ing the price he would fetch after the injury something less than they are in the process of to that which would have been paid for him compensating them for injuries. Yet, armed before he was injured. with such awareness, the rabbis choose injury The discussion in the Gemara argues the to animals, not human death, as the appro­ idea of retaliation can be reconciled with the priate analogy for human injury. In the lan­ requirement of money compensation once guage of capital punishment litigation, the we see that it means we are to value the rabbis understand that "death is different." offender, not the injured party, as the basis "Ransom" cannot be taken for the life of a for depreciation. We are giving the injured man who has taken the life of another. The party, not the value of his own eye, but the life of a man cannot be measured in money. value of the eye of the offender! This is the But parts of his body can. The implication point of saying that we take "an eye for an is that a man's body parts, his hands, his legs, eye." The advantage of this approach is, of his eyes, are not unique and priceless. They course, that it is the offender, not the injured are valuable, but valuable because they serve person, who suffers the degradation of being him in ways not fundamentally different from valued as a slave. the ways his animals serve him. They are In most cases, of course, this conceptual instrumental to him in a way that his life could turn makes no practical difference. But the not possibly be. Though his life cannot be Gemara next gives us the story of a case in reduced to money, therefore, his body parts which this difference in imaginary evaluation can. In the same way that he can be compen­ has real consequences: A child has his hand sated in money for this loss of his cattle, he chewed off by an ass. The judge first calls for can be compensated in money for the loss of setting damages without the element of de­ his hand, or eye. preciation, and then asks for depreciation The surprise here is that the requirement damages as well. The child's father objects. of money compensation instead of reciprocal Because the valuation for depreciation in this maiming is not based on some special respect case cannot be made on the basis of evaluat­ we have for the human body, which would

58 Vol 2*No 1*1991 A Journal of Philosophy and Judaism Robert Gerstein

require us to forbear from ever giving legal sons in the same category as animals (or val­ sanction to its willful disfigurement. Rather, uing them as slaves). it depends on a view that body parts have no Having come to this point, I am struck by intrinsic value fundamentally different from the parallel between this Gemara and two of that of the individual's other possessions: the the opinions in recent decision of the Califor­ Gemara does not recoil from maiming be­ nia Supreme Court in the case of Moore ver­ cause it is wrong, but because it is unneces­ sus Regents of the University of California.1 sary. We can accept money instead in this In Moore, the plaintiff alleged that, with­ kind of case because there is nothing wrong out his knowledge or consent, his spleen, with doing so. which had been removed as part of the treat­ This accords with the broader pattern of ment for his leukemia, was used by his sur­ the law, and with what we can conjecture of geon, the University, and others, to create a its history. The biblical texts the rabbis are cell line of enormous commercial value. explicating insist that ransom cannot be ac­ Moore sued for, among other things, conver­ cepted for a human life. On the other hand, sion of his spleen, claiming that it was his "ransom" can be accepted for damage to property which the surgeon and University property, to animals, and to people's bodies. had converted to their own use. It is only human life that must have distinctive The defendants' demurrer to Moore's treatment. cause of action for conversion was sustained. From our knowledge of primitive law, we The Court of Appeal reversed, but the Su­ can surmise that at one time ransom could be preme Court reinstated the trial court's rul­ accepted for any offense, including murder. ing, holding that a person has no property Previously, the apprehended offender could rights in removed body parts, and therefore buy off the vengeance of those he offended cannot sue for their conversion. with money, whether he had injured or killed. The majority opinion relied mainly on the The biblical rule forbidding us to take ransom need not to hamper medical research in re­ for a killer's life (Numbers 35:31) is prohibit­ jecting the cause of action for conversion. ing what had previously been permitted. But Justice Arabian, in his concurring opin­ The Gemara can be understood, then, as ion, articulated the concern relevant here. justification for denying to the integrity of the Arabian asked this question: human body the same special sanctity which Does it uplift or degrade the "unique human per­ surrounds human life. This refusal of special sona" to treat human tissue as a fungible article of status to the body is vindicated against an commerce? Would it advance or impede the human condition spiritually or scientifically, bydelivering the uneasy sense that there is something unto­ majestic force of the law behind plaintiffs claim. I do ward about treating human body parts in the not know the answer to these troubling questions, same way as to those of animals. The need to nor am I willing— like Justice Mosk [a dissenter]—to give material help to those who have been treat them simply as issues of "tort" law... injured is valued above a concern for the potential degradation of putting injured per­ 151 CAL.3d 120 (1990).

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The Gemara we deal with here suggests compensation of those who have suffered that we should treat questions involving com­ losses must, however, come first. pensation for use of body parts as "issues of This is not to say, however, that the prosaic 'tort' law," and that we committed ourselves desire to do compensatory justice overcomes to that conclusion when, in accordance with all barriers. Unlike modern legal systems, the Gemara, we decided to treat injuries to which are willing to set a value on human life human beings as issues of "tort" law, requiring for the purpose of compensating surviving compensation in the same way as for injury family members in wrongful death actions as to chattel. There is no reason to believe that well as punishing the killers if they acted with the rabbis would disagree with Justice Mosk's the appropriate mens rea, the rabbis would dissent, which holds that if anyone is to profit accept only capital punishment as the appro­ from Moore's cells, Moore should share in priate response to bringing about the death those profits. of another. They would not allow money Our body parts are useful to us, and to value to be put on human life as such. others, both while they are attached to us, But the value to the injured of having a and sometimes, as in Moore, after they have whole, well-functioning human body can be been removed. That usefulness gives them an and should be reduced to money. Material economic value for the loss of which deserves well-being must be seen to first, even if it to be compensated. We may have our qualms means classing people with animals. Those about treating injury to humans as something too fastidious to tolerate the degradation in­ of the same sort as injury to animals, like the volved in such a classification must meet the father who had qualms about having his in­ challenge made to the father in the story: jured son valued as a slave for purposes of "What right have you to deprive the child of compensation. The concern for material the payment which would belong to it?"**

60 Vol 2®No 1®1991 Lex Talionis: A Maimonidean Perspective on Scripture, Tradition, and Reason

David Novak

The practice of physical injury in retaliation tiating between his value before the injury and after­ for physical injury is not only prescribed in wards.3 several places in the Pentateuch (Exodus So far it would seem that there are two 21:24; Leviticus 24:19-20; Deuteronomy different laws clearly at odds with one an­ 19:21, 25:11—12), but it is described later in other. It seems to be a case where "rabbinic the Bible as actually having occurred (Judges law (Halakha) uproots Scripture," where 1:6-7).1 Thus, in justifying the literal mean­ "Scripture is interpreted contrary to its plain meaning."4 Though some commentators ing of this biblical law, Philo writes: concede the contradiction,5 there are also The legislators deserve censure who prescribe for attempts to interpret the tradition to avoid malefactors punishments which do not resemble the crime, such as monetary fines for assaults....Our law the apparent conflict. exhorts us to equality when it ordains that the pen­ In the introduction to his Commentary on alties inflicted on offenders should correspond to theMishna, which is the earliest statement of their actions.2 his philosophy of law, Maimonides defines The rabbinic tradition, on the other hand, the category of a law of Moses from Sinai as is just as explicit in ruling that: "a traditional interpretation about which Whoever injures another person is obligated there is no dispute." His example is the lex for...the injury itself....How is the payment for the talionis: injury itself determined? We look upon the victim as For, up until now, we have not found that at any time if he were a slave being sold in the market, differen- any of the sages from Moses to Rav Ashi ever said that whoever blinds the eye of a person his eye is to hnterestingly enough, none of the traditional commentators I have examined are troubled by this incident being a contra­ be blinded according to the word of the Lord, blessed diction of the traditional lex talionis. Thus Gersonides in his be he, "an eye for an eye," and that another said he Commentary to the Bible: Judges (ad loc.) explains the incident is only liable for monetary payment.6 by the general principle "measure for measure" (Sanhedrin 90a and parallels). 3Mishna, B aba Kamma 8.1. For the assumption of this princi­ 2 Philo, De Specialus Legibus (Cambridge, MA: Harvard Uni­ ple of monetary compensation in other areas of Halakha, see versity Press, 1937, trans. F.H. Colson), 3:181—182, 7:588- Mishna, Arakhin 5.2 and Arakhin 19b. 591. Philo seems to be refering to the different lex talionis in 4 Roman law. See Josephus,Antiquities, 4.8.35; Haim H. Cohn, Sotah 16a; ITKiddushin 1.2,59d; Yevamot 24a and parallels. Jewish Law in Ancient and Modem Israel (New York: KTAV, 5See Rashbam, Commentary on the Torah: Exodus 21:24 (C.B. 1976), p. 78. Chavel [ed.], Jerusalem: Mosad Harav Kook, 1963), who follows his usual procedure of distinguishing between the plain meaning of Scripture and the halakhic meaning stipu­ lated for it, always insisting that only the latter is actually normative. See ibid. Genesis 37:2; Exodus 21:1 (intro). In David Novak • Department of Religious Studies, addition see Maimonides, The Guide of the Perplexed (Chi­ University of Virginia, Charlottesville, VA 22903. cago: University of Chicago Press, 1963, trans. Shlomo Pines [hereinafter GUIDE]) 3:41, p. 558. Commentary on the Mishna, introduction, (Y. Kafih [cont.]

Vol 2*No 1*1991 61 David Novak S'VARA

Although this approach overcomes the judgments go forth to all Israel....When the Great contradiction between tradition and biblical Court operated there was no dispute in IsraeL.they declared what the law is to all who inquired, and they the troubling question remains: Has text, acted accordingly.9 there been rabbinic unanimity about this cat­ It would seem that the political authority of egory of law in general and lex talionis in the Sanhedrin determines what the law is, particular because it is from Moses, or is it whether the law comes from tradition, or considered to be from Moses because of rab­ binic unanimity? If the former view is correct, from biblical exegesis, or from human legis­ 10 then rabbinic reasoning is only a confirma­ lation. Lex talionis falls into the first cate­ tion of perceived revelation; if the latter view gory. It is the prime example of the Sanhedrin is correct, then rabbinic reasoning itself con­ authorizing a meaning of Scripture stipulated stitutes the tradition of perceived revela­ for it by tradition rather than derived from it tion.7 by exegesis. In his treatment of lex talionis in the The members of the Sanhedrin functioning Mishneh Torah, Maimonides presents argu­ collectively as Moses' successors speak with one ments in the talmudic case for basic consis­ voice.11 Accordingly, the lex talionis is a "law of tency between rabbinic law and the Moses from Sinai" because of its grounding in biblical sources. Then he notes: rabbinic unanimity. Thus, in the context of the Even though these things can be seen from the lex talionis, we see the way in which political biblical text, all of them are a law of Moses which we authority mediates between between biblical have. This is how our fathers saw it being adjudicated text and its rabbinic understanding. in the court of Joshua and in the court of Samuel the The resulting question, as old as Abra­ Ramaite and in every other court that existed from ham's questioning God's proposed destruc­ the days of Moses until now.8 tion of Sodom and Gomorrah on the basis of Here Maimonides indicates that scriptural justice (Genesis 18:25), is whether political exegesis alone is insufficient to give the rab­ authority determines what is right, or, con­ binic understanding of the lex talionis the versely, whether the decisions of this auth- grounding it needs to be considered "Mo­ ority are determined by what is right.12 In the saic." But if that grounding is not exegesis, case of lex talionis, is there a textual founda­ what is it? tion for rabbinic unanimity about the tradi­ At the beginning of his discussion of the tional interpretation of the law, or was political constitution of Israel, Maimonides unanimity only the result of majority rule?13 holds: When setting forth the various procedures to The [members of] the Great Court in Jerusalem are be used by any court in adjudicating civil the root of the Oral Torah; they are the foundations of normative teaching. From them the statutes and 9Hilkhot Mamrim, 1:1,4. See Hilkhot ShemittaVYovel, 10:6. 10Hilkhot Mamrim, 1:2. See Sefer HaMitzvot, introduction: sec­ tions 1—2. [ed.], Jerusalem: Mosad Harav Kook, 1964), 1:9. Cf. H. Horovitzand Y.A. Rabin (eds.), Mekhilta: Mishpatim, 277 and nHilkhot Mamrim 1:3. n. 8 ad loc.; Baba Kamma 84a (the view of R. Eliezer ben 12Also see Plato, Republic (New York: Basic Books, 1968, trans. Hyrkanus). A. Bloom), 33SEff., and NOVAK 5Aff. 7Note my dispute with Professor Marvin Fox on this question 13ln the Sanhedrin only thos proposing legislation had to give in "Natural Law, Halakha, and the Covenant," Jewish Law a reason for it. Everyone else could simply votes yes (cont.) Annual 7,1988, p. Alff. [hereinafter NOVAK], sHilkhot Hovel U'Maziq, 1:6.

62 Vol 2*No 1*1991 A Journal of Philosophy and Judaism David Novak

cases, Maimonides admonishes the judges "to peated in Baba Kamma 83b. In fact, it is the judge...on the basis of those matters to which prime example of rabbinic exegesis for the their reason inclines to accept as true and sake of scripturally justifying the traditional about which they are certain."14 At the end lex talionis that Maimonides did not find to- of the same chapter in the Mishneh Torah tally convincing.18 Maimonides speaks of the importance of The Talmud relies on another style of in­ judges acting for the sake of God and re­ terpretation, one seemingly more rational, specting human dignity.15 If these are the revealing deeper philosophic implications. criteria for the application of the law, surely Its most prominent example is the following: they are the criteria for enacting the law. I R. Simon bar Yohai says...what if a man blind in one shall now argue that the criterion of respect­ eye blinded the eye of another...how could I uphold ing human dignity is the rational principle "an eye for an eye" (Leviticus 24:20)? But Scripture which connects Scripture and the traditional states, "There shall be one standard for you (Leviti­ cus 24:22)—one equal for all of you.19 lex talionis. I shall attempt to show that we can see this in the Babylonian Talmud's treat­ Here the example cited is not exceptional, ment of the law and in Maimonides' allusion but rather it is paradigmatic of the general to that treatment in the Guide of the Per­ principle of equality in judgment. Physical plexed. mutilation of any kind violates the principle The halakhic midrashim, as they are of equality because it can never be equal in called, reveal a variety of arguments designed reality. The body parts of one person in and to show that the traditional lex talionis based of themselves are incommensurate with the body parts of another person. As such, the on compensation is the Bible's deeper in­ 16 actual words "an eye for an eye" are to be tent. These claims are exegetical, derived 20 interpreted figuratively. As Maimonides from the various hermeneutical devices of puts it, "[T]he assailant deserves to lose the the rabbis. Thus, for example, the verse limb; therefore, he pays for the damage."21 In "[Yjou shall not take atonement money for other words, the assailant could be physically the life of a murderer" (Numbers 35:31) is punished only if we were able to inflict the interpreted to mean "[F]or the life of a mur­ mutilation with absolute equality—which, of derer you shall not take atonement money, but for the loss of limbs you shall take atone­ course, we cannot. Monetary compensation is the best we can ment money."17 This interpretation is re- do under these imperfect circumstances. or no for any or no reason. SeeMishna, Sanhedrin 1:6 regard­ Money is the tertium quid that introduces a ing Exodus 23:2. Only after the dissolution of the Sanhedrin, standard whereby a just commensurate rela­ when rabbinic authorityno longer functioned collectively with political unanimity, did individual rabbis have to give a reason tion can be stipulated between the assailant for each particular ruling: See Hilkhot Mamrim 1:4. uHilkhot Sanhedrin 24:1. ls 15Ibid., 24:9. K'vod hab'riyyot is clearly good in and of itself. It Hilkhot Hovel U'Maziq 1:3. is only qualified when it presumes to be greater than God's 19Baba Kamma 84a. dignity. See, e.g., Berakhot 19b and parallels; JT Kelayim 9:1, ^For other examples of figurative interpretation in halakhic 32a; Kiddushin 32b. midrash, see Mekhilta: Mishpatim 293; Finkelstein (ed.), Sifre: 16See Mekhilta: Mishpatim 277. Devarim no. 237, pp. 269-270 and no. 243, p. 273. 17I.H. Weiss (ed.), Sifra: Emor 104d-105a. 21 See above note 18.

Vol 2*No 1*1991 63 David Novak S'VARA

and the assaulted. To attempt to practice parts of different persons is directly incom­ literal equality by physical means in cases of mensurate because the value of A's eye in physical injury would result in real inequality relation to his whole life is always going to be in the end. As the examples brought in the different from the value of B's eye in relation Babylonian Talmud indicate, that would re­ to her whole life. Therefore we have to intro­ sult in a legal assault on the human dignity of duce a third factor, money, in relation to the assailant as serious as the original assault which the value of an eye assaulted can be on his or her victim. estimated and then the commensurate value The classical example of rabbinic exegesis in money can be extracted from the assailant. on behalf of the traditional lex talionis is the Here we have indirect commensurability, midrash which distinguishes between atone­ what Aristotle called "proportional" equality ment money being mandated for personal as opposed to the more direct "arithmetic" injury, but prohibited for homicide. Al­ equality.24 This, it seems is what Maimonides though Maimonides did not find this distinc­ meant by "general equality." In the case of tion convincing legally, he nevertheless homicide, we are not dealing with a part of a alludes to it in the Guide, this time as a con­ larger whole; rather we are dealing with a cept rather than as an actual interpretation whole itself. Only if human life is considered of a scriptural text. There he writes: to be a part of a larger whole, for example the The punishment meted out to anyone who has done clan or the state, could Maimonides' princi­ wrong to somebody else consists in general in his ple of general equality apply. Clearly, though, being given exactly the same treatment that he has in Judaism human life is not evaluated in given somebody else....For necessarily there must be terms of its being part of a larger whole. This, a soul for a soul—the young and the old, the slaves it seems, is what Maimonides meant by "nec­ and the free, the men of knowledge and the ignorant, being considered equal.22 essary equality." Maimonides distinguishes between "nec­ One can conclude from this distinction either that human lives are incommensurate essary equality" on the one hand, and "gen­ altogether, or that they are really equal. One eral equality" on the other hand.23 Human lives are subject to necessary equality, human life is worth no more or no less than whereas human body parts are subject to than any other human life. The classical Jew­ general equality. What is the basis of this ish teaching of the equality of all human lives essential difference? Maimonides himself created in the image of God clearly indicates 25 simply states it, but like so many of his simple this principle. As the doctrine is parphrased statements in the Guide, it invites our ratio­ in the Babylonian Talmud, "Why do you think nal speculation. your blood is redder; perhaps the other 26 Perhaps one can reason as follows: In the person's blood is redder than yours?" ** case of personal injury, the value of body

22GUIDE, 3:41, p. 558. ^Aristotle, Nichomachean Ethics (Indianapolis: Bobbs-Mer- rill, 1962, trans. M. Ostwald), 1131a30# ^For other examples of the principle of general equality in rabbinic penology, see Yevamot ilOa and parallels; Gittin ^For a locus classicus of this teaching, see JT Nedarim 9:4,41c 40a-40b; Baba Metzia 101b; Makkot 2a and JT Baba Kamma regarding Genesis 5:1. 8:1,6b regarding Deuteronomy 19:19. 26Pesachim 25b. Cf GUIDE 3:51.

64 Vol 2*No 1*1991 Justice and Talionis

B. Sharon Byrd

The biblical phrase "an eye for an eye" is and in providing the state with sufficient lim- often taken to mean that the state should itation of its power to deal with an aggressor. inflict harm on the offender in return for his These two concerns can both be satisfied only evil deeds. Immanuel Kant's "retributive" by ensuring identity between crime and pun­ penal philosophy is cited as the secular em­ ishment.3 bodiment of this principle. But the associa­ The Mishna shows us that "eye for an eye" tion commonly made between retaliation for retribution has nothing to do with paying the harm done and retribution or just punish­ back the offender, but rather with paying ment is overly simplistic: it is a false interpre­ back the victim for harm suffered: "One who tation both of Kant's penal philosophy and of injures a fellow man becomes liable to him Jewish law. for five items: for depreciation, for pain, for A proper understanding of punishment healing, for loss of time, and for degrada­ requires that we distinguish between retalia­ tion."4 The "eye" demanded for the eye taken, tion and retribution.1 Retribution or just does not refer to the offender's eye, but punishment should be designed to make the rather to the value of the eye that was taken victim whole again, to reinstate his or her from the victim, and that must be given back condition and self-esteem as it existed prior to him. The identity between crime and pun­ to the crime. Retaliation is a conception sui ishment here is not retaliatory, oriented to­ generis, based on the magical reestablishment ward inflicting harm equal to harm caused, of the legal order secured by inflicting harm but instead truly retributive, oriented toward on the offender. making the victim whole again. Kant's interest in the lex talionis derives In discussing the Mishna, the Gemara dis­ not from a retaliatory yearning to pay back tinguishes clearly between retribution, inter­ the criminal offender. Instead, Kant is inter­ preted to mean pecuniary compensation for ested in providing the potential offender with harm done to the victim, and retaliation, in­ sufficient motivation not to violate the law terpreted to mean harming the offender in

2Die Metaphysik der Sitten in Kant's gesammelte Schriften: Vol. 6, p. 218, [commonly referred to as the "Akademie Ausgabe"], 1See generally Udo Ebert, "Talion and Vergeltung im Preussische Akademie der Wissenschaften (ed.) [hereinafter Strafrecht—ethische, psychologische und historische As- cited as MdS AA 6]. All translations of the Kant texts are my pekte," in Heike Jung, Heinz Muller-Dietz & Ulfrid Neumann (eds.) Recht und Moral (Baden-Baden: Nomos Verlag, 1991) own. pp. 249-267. 3For a detailed argument on this point, see my "Kant's Theory of Punishment: Deterrence in its Threat, Retribution in its ExecutionLaw and Philosophy, 8, 1989, pp. 151—200. 4Mishna, Baba Kamma 83b [texts are from theSoncino version B. Sharon Byrd • Faculty of Law, University of of Baba Kamma (London, Soncino Press, 1971), pp. 473- Augsberg, University of Erlangen, Germany. 483],

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the same manner that he or she harmed the achieved. The School of Hezekiah also ex­ victim. One problem is posed, for example, pressly rejected retaliation: by cases in which the offender has done irrep­ Eye for eye, life for life, but not "life and eye for eye." arable harm to the victim. If the offender has Now if you assume that actual retaliation is meant, caused the victim to lose a "principal limb," it could sometimes happen that eye and life would be taken for eye, as while the offender is being which cannot be restored, how can the law of blinded, his soul might depart from him.8 pecuniary compensation apply, rather than The School of Hezekiah, in rejecting retal­ the law governing murder? One could inter­ iation, reflects the type of concern that actu­ pret the punishment for murder, which is ally motivated Kant to use the lex talionis as truly retaliatory, to apply to killing a part of a measure of punishment, namely concern the body, namely a principal limb, and there­ that the offender not be treated unjustly fore require that the offender's limb be taken through the imposition of punishment. The as punishment: School of Hezekiah fears an attempt at retal­ But is it not written: And he that smiteth any man iation because of unforeseen consequences mortally shall surely be put to death: [which on account of the fact that the law of murder isnot being that would in effect exceed the harm actually dealt with here, surely refers to cases of mere injury caused by the offender. Kant rejects punish­ and means Retaliation]?5 ment in excess of the harm caused, thus using The Gemara rejects this interpretation, com­ the lex talionis as a limitation on the amount paring the smiting of man to the smiting of of punishment, because excessive punish­ beast: ment would mean that the offender were "He that smiteth a beast mortallyshall make it good," being used merely as a means to the social and furthermore, because it is written soon after, "as goal of general deterrence. he hath done so shall it be done to him," thus proving The actual measurement of pecuniary that it means pecuniaiy compensation.6 compensation in the Mishna represents a Rabbi Dostai b. Judah and Rabbi Simon b. mixture of what the common law would re­ Yohai also explicitly reject retaliation in gard as tort and criminal sanctions. The first favor of retribution in interpreting the "eye four bases of liability, namely depreciation, for an eye" mandate: pain, healing, and loss of time, capture the Eye for eye means pecuniaiy compensation. You say evaluation made in modern tort law.9 The pecuniaiy compensation, but perhaps it is not so, but final basis of evaluation, degradation, is "to actual retaliation [by putting out an eye] is meant?7 be estimated in accordance with the status of Both reject retaliation because they maintain the offender and the offended."10 It is this that it is an impossible goal to fulfill. If the aspect of compensation that resembles our eye of one was large and the eye of the other criminal sanctions. Degradation, we are told small, or if the offender who took the eye of by the Gemara, involves no actual monetary another was blind, equality cannot be

8Gemara, 84a, p. 478. sAbove note 4, p. 475. 9Mishna, 83b, pp. 473-474. 6Ibid. w 7Ibid, p. 476. Ibid.

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loss.11 And, as the Mishna says, in calculating Anyone who has been the victim of a theft degradation one must take the status of the finds, I would suggest, that replacement of offender and the victim into account. Ac­ the loss is not sufficient to make up for the cordingly, degradation seems to focus on the betrayal one senses. One feels, in Kantian affront inherent in the violation, or on that terminology, that one has been used merely element of harm that modern law subjects to as a means to the thief s goal of enrichment, criminal sanctions above and beyond what that one's own will has been ignored com­ can be required of an offender under tort law. pletely. Unfortunately, the text gives us no further To understand the additional loss one suf­ information on exactly how degradation is to fers as the victim of a theft, above and beyond be measured nor what effect the status of the the actual value of what was stolen, Kant's respective parties plays in its calculation. third formulation of the categorical impera­ Nonetheless, Jewish law does not revert to tive ("Act so that you treat humanity, both in retaliation and require that the offender suf­ your own person and in the person of every­ fer equal harm. Degradation, although not one else, always also as an end, never merely 1 involving actual monetary loss, still requires as a means' ) is indeed instructive. Consider pecuniary compensation. Kant considers a the difference between a sales contract and case of slander and expresses concerns that a theft. Although the parties to a sales con­ are at least parallel. In using the lex talionis tract use each other as a means to some as a measure of just punishment, Kant recog­ desired benefit (i.e., payment for a good or nizes that the difference in the status of the service), they do not use each other merely as offender and that of the victim raises prob­ a means. The required element of prior lems. He rejects, for example, a monetary agreement to the deal incorporates the re­ fine for slander, "since one who has much spect one individual exhibits for the other money can afford to commit it once for en- individual as an end, as someone who also has 12 joyment. Instead, Kant recommends a a choice in the matter. It is this element of punishment that would have the same effect, agreement to a contract, lacking in the case namely requiring the slanderer not only to of theft, that embodies the respect of one's apologize, but also to kiss the hand of the will and makes a sales contract inherently insulted victim, even though the latter is of a different from a theft where the victim is lower status. simply reimbursed for the value of the object Another example of a penal sanction, as stolen. opposed to a tort sanction, mentioned in the Furthermore, even if one were to assume Mishna is the penalty for theft. Here the that theft does not involve disrespect of the offender must pay back twice the value of victim, it is still doubtful that one would be that which was taken. The double payment indifferent to the insecurity of knowing that for theft recognizes that the victim suffers one can never plan to use certain objects more than mere loss of the object stolen. even if their loss is compensated as opposed

nGemara, 84b, p. 483. 13Grundlegung zur Metaphysik der Sitten: Vol 4, AA, p. 429. 12MdS AA 6, p. 332.

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to the security of knowing that what one pensating the victim for the loss suffered. owns is there to use whenever one needs it. Neither is primarily concerned with simple The Gemara recognizes this distinction in retaliation. requiring more than a mere one-to-one com­ Retaliation, commonly confused with ret­ pensation for simple theft. ribution, is not a justification for inflicting Kant's solution to the appropriate punish­ punishment, according to either Kant or the ment in a theft case is also not limited to the Talmud. Kant's contribution to penal justice value of the object stolen. Instead, Kant lies in using the lex talionis to limit the state views the real harm inherent in a theft as the in its reaction toward a criminal offender. insecurity the thief causes for property in Certainly, one of the positive attributes of a general. Again, Kant's focus differs from the retaliatory theory of punishment is that the Mishna's orientation toward the victim. offender is treated as a responsible individ­ Kant, whose argument for civil society rests ual, demanding our respect even in the face on the a priori necessity of property rights, of his criminal violation. Vengeance veiled views theft as an attack on the social order: under the cloak of state authority cannot give "One who steals, makes property uncertain us a satisfactory explanation of why we may for everyone else; he thus robs himself (ac­ punish criminal offenders. The talmudic con­ cording to the law of retaliation) of the cer­ tribution to criminal justice lies in its devo­ tainty of all possible property."14 Kant's tion to making the victim whole again. The solution is to take all property, and means of talmudic interpretation of the biblical "eye property acquisition, from the thief and re­ for an eye" has little to do with inflicting pain quire him to work to compensate for the costs on a criminal offender simply because it is of his maintenance by the state. comparable to that which he has inflicted on Both the Gemara and Kant see simple the victim. Instead, it demands the offender reimbursement as insufficient in a theft case, compensate the victim for the real loss that but for different reasons. Whereas Kant is has occurred. This very humanitarian ap­ concerned with a violation of civil society, as proach to reestablishing the social order guarantor for the security of its members, the often seems to have been lost in our modern Gemara is more oriented toward truly com- use of the biblical texts on punishment.^

14MdS AA 6, p. 333.

68 Vol 2«No 1*1991 Punishment and Human Dignity

Jaime Malamud-Goti

The biblical discussion of the lex talionis is newed debates about why, who and how to generally taken to reflect a retributive philos­ punish. ophy of punishment. Retributive theories Practice has invariably discredited at­ sometimes focus on the harm done ("an eye tempts to justify punishment on grounds of for an eye"), and sometimes on the moral deterring future human rights violations. The culpability and desert of the actor. These foci possible exemplary effects of convictions are stand opposed to utilitarian arguments that likely to be overridden by competing incen­ stress the social benefits of punishing the tives from within the perpetrator's circle. The guilty. In this article I argue that punishing approval of inhumane acts by comrades and official lawlessness fosters democratic prac­ political supporters represents an immedi­ tices based on citizen self-esteem and the ate, certain affirmation that outweighs the assertion of personal rights. This version of uncertain suffering represented by a future retributivism is instrumental in the sense that criminal sanction. In disregarding all possible consequences it has a goal beyond making the criminal of punishment, the classic form of retribut­ suffer in proportion to his crime. My argu­ ivism centers the idea of punishment in the ment reflects experiences as a participant in wrongdoer's confronting the consequences the trials of the Argentinean human rights of his deed. The message to the wrongdoer violators in the mid-1980s. is:"Thisishowwrongwhatyoudidwas." Yet The justification of punishment and the this view, which draws on the biblical version goals that are attached to it have recently of the lex talionis, reveals its own flaws. First, come to the fore in the new democratic ex­ it is not self-evident that causing harm and periments of Chile, Argentina and Uruguay. moral culpability require that offenders be By analogy to the crimes tried in Nuremberg, made to suffer. Traditional retributivism the cruelty and extent of the abuses commit­ does not answer the question, "Why punish?" ted by the governmental bureaucracies Second, the traditional view, indifferent as it against basic rights, including the lawless ab­ is to social consequences, attaches unquali­ duction of 9000 citizens,1 has promoted re- fied, intrinsic value to the rules that mandate punishment. As a social institution, there­ lNunca Mas: Informe de la Comision Sobre la Desaparicion de fore, the traditional view exposes itself to the Personas, Editorial Universitaria Buenos Aires, Buenos Aires Argentina, 1986. charge that it is irrational.3

2Robert Nozick, Philosophical Explanations (Oxford: Clar­ endon Press, 1981), p. 370. Jaime Malamud-Goti • United States Institute of 3John Rawls, A Theory of Justice (Cambridge, MA: Harvard Peace, Washington, DC 20005. University Press, 1971), p. 30 ("All ethical doctrines (cont.)

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The teleological view of retributivism abstain from conventional forms of punish- avoids the charge of irrationality. For advo­ ment.4 cates of this variant, punishment redresses In the Argentine trials, the government injuries to valued sentiments. I am not refer­ drew on utilitarian grounds to punish a lim­ ring to vindicative sentiments but rather to ited number of offenders; its concern was the victim's loss of purpose and worth. Those avoiding conflict with the army and other who endured unwarranted chastisement by authoritarian sectors. In contrast, human the oppressor experience shame after giving rights groups appealed to classic retributivist up the ideals that makes their life meaningful arguments in order to bring as many officers and, consequently, will have no confidence as possible to trial.5 that others will respect them. Teleological Distinguishing my position from both of retributivists treat punishment as counter­ these, I wish to argue that failing to impose acting this shame by restoring lost trust. certain modes of punishment on state crimi­ A salient difference between these two nals frustrates attempts to counteract the res­ versions of retributive theory is that those idue of authoritarianism in newly democratic committed to punishing regardless of conse­ societies. A rights-based community is likely quences must punish in all cases in which a to emerge from subdued populations only if given set of conditions render an act criminal. individuals regain confidence in their per­ The punishment is justified as an imperative sonal values and ideals. of justice, whether it serves human interests In dictatorial regimes, the state systemati­ or not. cally represses individuals from pursuing per­ Teleological retributivists are exempt sonal ideals and values it considers undesir­ from this rigorous view of taking an eye for able. Like the hardened unemployed and the eye. In pursuing redress for victims, a number chronically ill, the systematically oppressed of options present themselves: to punish eventually succumb to their condition. To fully, to condemn the offender with a lesser make survival possible, as Amartya Sen penalty or, as our passage in the Gemara points out, they will accommodate to the argues, to impose monetary damages as the possibility of "small mercies."6 equivalent of physical punishment. If impos­ This feature of dictatorships poses one of ing pain upon the perpetrator will not im­ the heaviest legacies to transitional govern­ prove the victim's sense of self-respect and ments, and often leads to an inescapable par­ confidence, then some other sanction maybe adox. Prospects of democratic justice depend warranted. If, for example, the heads of crim­ on a community's sense of moral responsibil- inal organizations have been convicted and the victims of such forms of organized crime 4Note that whereas deterrence focuses on potential perpetra­ tors, this version of retributivism is based on the victim's have regained self-respect, confident that sentiments. they will be protected against future viola­ 5See Mark Osiel, "The Making of Human Rights Policy in Argentina: The Impact of Ideas and Interests on a Legal tions, teleological retributivists might well Conflict," in Journal of Latin American Studies, Great Britain, 18,1978, pp. 135-178.

worth our attention take consequences into account in judg­ Amartya Sen, On Ethics and Economics, (Oxford:Basil Black- ing rightness. One which did not would simply be irrational, well, rep. 1990), p. 45. crazy").

70 Vol 2*No 1*1991 A Journal of Philosophy and Judaism Jaime Malamud-Goti

ity, and this sense is determined by human rights activists who called for punish­ individuals' perception of their own worth ment to the assassins, and the utilitarian ap­ and requires social institutions that ensure praisal of how many officers had to be and promote that perception. It is therefore punished to avert future violations and ap­ highly likely that the stronger the call for pease society. In this process the victims did justice, the more impaired by authoritarian­ not play a decisive part; the experience did ism will be those institutions on which justice not contribute significantly to restoring the is grounded. Adjudicating responsibility people's confidence in themselves and in the among dictatorship's officials and setting up institutions that secured their rights. institutions that ensure individual liberties This effort to punish state criminals can are complementary yet often conflicting hardly be regarded as a success. The signposts tasks. of the failure were the compromising stance By acknowledging the victim's worth as a that the Alfonsin administration adopted member of a community, punishment will against the military officers who rebelled encourage that victim to participate as a full against the government in April 1987, Janu­ member of that rights-based community. ary 1988, and January 1989, and the legisla­ This was not the purpose of the Argentine tive exemption for military personnel who trials against those responsible for the terror exercised "due obedience" to orders (June of the militaiy junta. The goal was not only 1987). In Argentina, the failure to restore the to differentiate between those responsible people's assurance in their ability to exercise and their followers, but to eliminate, in prin­ their rights led to increasing cynicism and, ciple, the priorities and immunities that the eventually, to the demise of the democratic military dictators enjoyed. The judges got project altogether, as evidenced by President caught between the retributivist demands of Menem's pardon decrees in 1989 and 1990.n

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