AN EYE FOR AN EYE IN CONTEXT: THE MEANING AND FUNCTION OF THE LEX TALIONIS IN THE TORAH by Jonathan Vroom, BA A thesis submitted to fhe FacultY of McMaster DiViilitYCollege in partial fulfilment of the requirements for the degree of Master of Arts McMaster Divinity College Hamilton, Ontario 2009 Master of Arts McMASTER DIVINITY COLLEGE Hamilton, Ontario TITLE: An Eye for an Eye in Context: The Meaning and Function of The Lex Talionis in the Torah AUTHOR: Jonathan Vroom SUPERVISOR: MarkJ. Boda NUMBER OF PAGES: vi + 123 ii McMASTER DIVINITY COLLEGE Upon the recommendation of an oral examining committee, this thesis by JONATHAN VROOM is hereby accepted in partial fulfillment of the requirements for the degree of MASTER Oli A.R-'fS-1N CHRlS'I'lAN-S'I'U-DI-ES Primary Supervisor /}&P~ Setondary Supervisor Date: March 26, 2009 iii ABSTRACT An Eye for an Eye in Context: The Meaning and Function of the Lex Talionis in the Torah Jonathan Vroom McMaster Divinity College Hamilton, Ontario Master of Arts, 2009 This study explores the meaning and function of the "eye for an eye" formula as it appears in the legal corpora of the Pentateuch. Past attempts to determine the meaning of the formula have been based on either its historical function or its rhetorical effect. In either case, the specific contexts in which the formulae occur are only of ancillary interest. In contrast, this study places primary emphasis on the three contexts in which the formulae occur. The meaning(s) of the formulae within the Torah are determined based on how they functioned in their respective literary contexts. In the end, it is shown that the lex talionis in the Torah did not convey one single meaning, but rather it was rhetorically flexible and could convey a variety of meanings depending on how it was ---- --- used. iv ACKNOWLEDGMENTS This study arose out of a keen interest in the legal material of the Pentateuch. I would like to thank my supervisor, Mark J. Boda, who continually encouraged me to pursue this interest, despite whatever challenges it brought upon him, as he guided an inexperienced student through this complex and challenging field. His superb scholarship is matched only by his genuine care for his students, both their personal and spiritual well-being as well as their scholarly development. I would also like to thank my family. My father, James Vroom, has made my academic pursuits possible by providing the fmancial support necessary to allow me to pursue graduate studies with a young family. Additionally, my sister and mother, Carlye and Louise Vroom, have gone through the painful process of editing and re-editing my work. I am indebted to their support. Most of all, I would like to thank my wife Sherryl and her family. As I was engaged in research and writing, she, with help from her family, maintained the household while looking after our two children (Joshua and Julia) who were under the age of two. Her tireless efforts and loving support throughout this process are the embodiment of the ,'n-I1tvN (excellent wife) spoken of in Proverbs 31. To me she is a gift from God, and I will always treasure her love. v CONTENTS Introduction 1 Chapter 1: History, Methodology, and the Lex Talionis 3 1.1 Past Interpretations of the Lex Talionis ......................................... 3 1.2 Problems with Past Interpretations ............................................ 11 1.3 Scholarship on BiblicalLaw ...................................................... 15 1.4 Aim, Scope and Methodology .................................................. 29 1.5 Outline and Thesis ............................................................... 35 Chapter 2: Talion, Miscarriage, and Mishpatim 36 2.1 Scenarios of Exodus 21:22b-23a............................................... 37 2.2 Local Context ..................................................................... 42 2.3 Broader Context .................................................................. 49 2.4 Conclusions ....................................................................... 55 Chapter 3: Blasphemy, Talion, and Alien Duty 56 3.1 Local Context ........................................................................ 58 3.2 Broader Context ................................................................... 67 3.3 Summary and Conclusions ....................................................... 76 Chapter 4: The Tallon and Courtroom Drama 79 4.1 Local Context .................... , ................................................. 80 4;2 Broader-Context .. : .... : .....- ......................~: ............................. :.89- ~ 4.3 Conclusions ......................................................................... 96 Chapter 5: Comparison and Conclusions 98 5.1 Summary .................................................................................. 98 5.2 Comparison ......................................................................... 101 5.3 Conclusions .............................................................................................. 105 5.4 Implications .............................................................................................. 106 Bibliography .................................................................................. 108 VI 1 Introduction The lex talionis (or "an eye for an eye" as it is commonly known) is perhaps the most famous and widely quoted phrase from biblical law. The formula occurs three times in the Old Testament, each time with unique variations and set in different contexts: Exod 21:22-25 (the case of third party injury), Lev 24:10-23 (the half-breed blasphemer narrative), and Deut 19:15-21 (the case of false accusation). Although the phrase likely finds its roots in earlier sources, it is most often associated with the Old Testament.1 It has been the subject of much commentary and citation from the Second Temple period2 through to the present day, both in scholarship and popular culture.3 I While the Latin phrase "lex talionis" derives from Roman law, the roots of the biblical formulation (eye for eye) likely find their origins in other Mesopotamian legal corpora. The second law of the eighth table of the Roman Twelve Tables (originally published in 450 Be) reads, "If one has maimed a limb and does not compromise with the injured person, let there be retaliation [talio esto]." See, Adkins and Adkins, Ancient Rome, 3, and Kugelmass, "Lex Talionis in the Old Testament," 1. As for the specific phrase "eye for eye," it likely finds its roots in Mesopotamian legal corpora. Several laws within these texts use a similar form (although in different Semitic languages). The laws ofHammurabi (LH), which predate the Pentateuchallaws by more than 500 years, use the phrase "slave for slave"(LH 12,219), "ox for ox" (LH 245), and "sheep for sheep" (LH 263). The Sumerian Laws also use the phrase "ox for ox" (SL 10). See, Pritchard, ANET, 160, 175-77,526. Additionally, there are numerous penalties listed throughout these codes, which, although they do not use an "X for X" formula, mirror the given offense with language that resembles the biblical talion. For example, LH 195-197 reads, "If a son has struck his father, they shall cut offhis hand. If a seignior has destroyed the eye of a member of the aristocracy, they shall destroy his eye. If he has broken a(nother) seignior's bone, they shall break his bone." See, Pritchard, ANET, 175. For a complere-listofllrese"mirronng" pumsliments, see,-Dnverand-NfrTes;TneHaoylanTanLaws,-499-:1nese clear parallels suggest that the talionic formula of Old Testament law is derived from earlier Mesopotamian sources. 2 The most famous early reference is Jesus' comments in Matt 5:38, where the (equally famous) phrase "turn the other cheek" was coined to contrast the rule oftalion. For a list and analysis of all the Second Temple sources that allude to, cite, or comment on the Old Testament talion see, Davis, Exhortation of Jesus, 55-72. 3 Aside from the comments made throughout the history of biblical interpretation, the talionic formula is also of concern to legal historians and Assyriologists. Legal historians David Daube and his student Bernard Jackson, for example, have written extensively on the lex talionis in the Old Testament. See, Daube, Studies in Biblical Law, 102-53 and Jackson, "Models in Legal History," 1-30 (this is but one example of the many articles and chapters Jackson has written on the talion). As well, it is the title of a recent book by William Miller (a legal scholar), which surveys talionic justice in the ancient Near East and Icelandic sagas. See, Miller, Eyefor an Eye. Assyriologist Raymond Westbrook also dedicated a large chapter of one of his books to the lex talionis. See, Westbrook, Studies in Biblical and Cuneiform Law, 39- 88. In addition, the biblical formula has been cited in numerous sources of popular culture (where it seems to be used as a catch-phrase that embodies the principle of retaliation in kind or vengeance in general). A few classic and modem examples will illustrate its prominence. William Shakespeare, for example, entitled one of his plays, Measurefor Measure. It was also cited in Alexander Dumas' classic novel, The 2 Due to the ubiquity of the phrase, which has persisted for centuries, its meaning has taken on a life of its own. In popular culture, it is the catch-phrase for retaliation in kind and vengeance in general. As a consequence, this meaning, which has evolved over centuries, is often imposed (anachronistically) on the Old Testament.4 The talion is often assumed