Drash on Mishpatim 2024

Rabbi Stanton Zamek

United Jewish Congregation of Hong Kong

In our parasha for this week, Parashat Mishpatim, we find one of the most misunderstood and misrepresented teachings of the entire Torah. In popular shorthand, the concept is known as “an eye for an eye” and in scholarly sources as Lex Talionis, the law of retaliatory justice.

Strangely, Lex Talionis appears in Parashat Mishpatim in the discussion of a case where it does not apply:

“When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him, the payment to be based on reckoning.”

Then the text shifts to the general case of a physical assault:

“But if other damage ensues, the penalty shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.”

On the face of it, the application of this seems straightforward: Shlomo has injured Reuven’s eye or knocked out one of his teeth, therefore let the retaliatory eye gouging and tooth knocking begin.

Historically speaking, the picture is not so brutally simple. Many Biblical scholars doubt that Lex Talionis, was ever carried out. By the time of the Rabbis, it is very clear that there is no taking of eyes for eyes. Instead the Rabbis understand the passage to mean: The cost of an eye for an eye, the cost of a tooth for a tooth. It is a system of monetary compensation.

This understanding was driven by a sense of fairness. The Talmud is full of objections to a literal reading of ayin tachat ayin, an eye for an eye. Rabbi Dosthai asks: What if the assailant’s eye is big and the victim’s lost eye was small?  Shimon bar Yochai asks: What if the assailant was blind, and they gouged out the eye of sighted person? As the Leviticus version of Lex Talionis says: “You shall have one standard for stranger and citizen alike,” the Rabbis reasoned that ayin tachat ayin cannot require physical retaliation. As every person is unique, such a penalty could never meet the standard of absolute fairness that the Torah required.

Before I continue, let me address the elephant in the drasha. We are speaking here of person-to-person harm in the ordinary course of life, not warfare. Israel’s response to the horrific, inhuman attacks of October 7 might be casually referred to as “retaliation,” but no matter what Israel’s detractors may say, the war in Gaza is not a literal application of Lex Talionis. To say that Israel’s actions are a mirror image of the Hamas atrocity that started this war is moral idiocy and the vilest slander.

What the Rabbi’s interpretation of ayin tachat ayin provides us is a means of understanding our retaliatory impulses in our day-to-day lives. If we are honest with ourselves, we have to admit that our first, reptilian brain response to an insult, to our body or to our psyche, is to retaliate. Even when we don’t act on this impulse, we often wish we had, thinking that we have been weak or a fool for not striking back. This impulse to give as good as we got is evident in every schoolyard and in sayings like, “don’t get mad, get even.” As it is easy to give in to these aggressive impulses, it is helpful to remember that our teachers’ understanding of individual justice is not “get some payback” but “make whole again.”

To be in a relationship of any kind with other human beings brings with it the continual potential for conflict. This means that we are routinely faced with the choice between trying to re-establish wholeness in a relationship or getting even. Choosing to get even, choosing to score points instead of working toward a resolution, is what turns a disagreement into a fight. Why is a truly nasty argument with a spouse or dear friend such a horrible experience? Because the better we know someone, the better we know just how to hurt them. And the more we are hurt the more powerful the desire to hit back becomes— eye for eye, tooth for tooth, harsh word for harsh word, cruelty for cruelty—and on and on it goes until everybody is blind, toothless, and miserable.

So the Rabbis are telling us to take care. In the heat of our anger the literal sense of an eye for an eye seems like a tremendously good idea, but in reality hurting another, particularly someone we love, does not help us. We don’t retaliate against the body and we need not reflexively retaliate against the heart or the mind. When there is harm it is much wiser to try to ameliorate it rather than duplicate it.