"To be a teacher in the right sense is to be a learner.  I am not a teacher, only a fellow student."  (Soren Kierkegaard)

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A FEW PRE-SHABBAT WORDS FROM RABBI AARON

An Eye For An Eye (a closer look)

Parashat Mishpatim is where we find the famous formula containing "an eye for an eye.” In order for us to deeply engage the text, it's important to put things under the literary microscope - compare the biblical to text to its Near Eastern cousins, view the text within a bigger-picture context...so, here we go.

Exodus 21:23-25
[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.

Biblical Context - Exodus 21:22
The bracketed phrase - "But if other damage ensues" - directs our attention to a case of physical harm to a pregnant woman. 

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.  

Zooming In - A Higher Magnification Yields Complexity and Ambiguity
Not everyone reads a given text the in the same way. Within Jewish scholarly circles - throughout the centuries - the overwhelming sense of the text is that the quarreling man had no intention of the harming the woman. She was, unfortunately, in the wrong place at the wrong time. By stating this explicitly we are reminded that motivation is critical to our understanding of justice. The Hebrew of the italicized text above reads v'natan biflilim -  ונתן בפללים – which might be rendered as "he [the husband of the injured woman] will give it over to judgement." The mention of a monetary fine is also important. An extensive talmudic discussion pits a literal reading of "eye for an eye" against a system of reckoning which yields monetary compensation. The rabbis reject the literal reading of the text , opting for monetary compensation.

בפללים – Speaking of Judgement and Reckoning (a small tangent...)
The root - פלל – is embedded within the word tefilah - תפילה, prayer. Since the word תפילה is constructed in a reflexive voice (an action which is performed upon one's self), the implication is that when we pray we are calling ourselves to judgement, we are engaged in a kind of self-reckoning.

Vague Phrases Beg for Interpretation
Truth to tell, the biblical text presents many difficulties. In the Hebrew, we read v'yats'u yeladeha - ויצאו ילדיה; there is a (possible) suggestion that more than one fetus is involved. It is unclear whether or not singular [ילד] versus plural [ילדים] is of legal consequence. Moreover, the text isn't clear about the importance of stillbirth versus premature delivery versus full term delivery. In addition to these questions, the phrase "if other damage ensues" - v'im ason yihyeh - ואם אסון יהיה leaves us unsure about the author's intent. It may refer to the death of the fetus or to the death of the mother [Rabbinic tradition reads the phrase as meaning the mother's death].

Ancient Near Eastern Texts - Similarities and Differences
The case of the injured pregnant women is also addressed in the laws of Sumer, the code of Hammurabi, Middle Assyria, and in Hittite Law. All these codes call for monetary compensation. Only the Sumerian code distinguishes between intentional and unintentional injury to the woman. In Hammurabi's code, there is a provision for vicarious punishment: if the litigants belong to the upper class, the assailant's daughter is put to death if the victim dies. The Middle Assyrian laws also provide for vicarious punishment: the penalty varies based on social status, and the aggressor is punished with a series of torments [which we would call "torture"]. The Hittite laws take the age of the fetus into account in estimating the levied fine. 

What distinguishes Biblical law from its ancient Near Eastern cousins? Firstly, social class does not play a role in determining the punishment or fine. Secondly, there is no vicarious punishment meted out. These differences are critical to the ethical character of the biblical text.

According to legal anthropologists, before Hammurabi's code cases of physical injury were handled privately - between the families involved. With the introduction of Hammurabi's code, physical injury is viewed as an issue of public welfare, and the state administers justice. This is a paradigm shift which has profoundly shaped our world. Still, notice the still-contentious debates about the role of the government versus the autonomy of the individual, and the nature of state administered justice.  

A worthwhile website to check out: http://www.bible-history.com/archaeology/assyria/hammurabi-stele.html 
Here is a description of a remarkable find - the Hammurabi stele, dating back to approximately 1790 BCE. This object is housed in the Louvre. 

Eye for an Eye; What does it mean?
Gandhi offered this memorably witty criticism: An Eye for An Eye -makes the whole world blind. Those words are certainly worth mulling over. In terms of our investigation, we're now employing a different lens. We're stepping back to take in the broad sweep of humanity as well as the painful spectacle of human history. It certainly is true that Hammurabi's code played a crucial role in the conceptual evolution of justice. We see legal systems as vehicles that attempt to replace vengeance with justice. In he case of the mentally unstable Tucson shooter, for example, the legal conversation will include the assailant's psychological state. The charges for each killing will depend either upon the laws of the state of Arizona or upon certain Federal statutes. As much as our legal culture yearns for a speedy trial, our culture makes room for the deep complexity of various issues, and the proceedings will likely unfold slowly and deliberately. Many people, especially the families of the injured and of the dead, are likely to become frustrated by the slow wheels of justice. And yet, there is an understanding that the state [or the nation] - with all of its shortcomings - must try its best to administer justice, and our rushing ahead precipitously would not serve to further the ideals of justice and fairness.

What does a life cost? Ask the Federal official who had to answer that awful question in terms of the financial payment given to each family connected to the people who were murdered on 9/11 in the Twin Towers and at the Pentagon and on the three planes that were transformed into WMD. How does one put a $ value on a life? I'm certain that the responsible officials had an impossible task before them. And, nonetheless, that was exactly what had to be done. The innovation of financial compensation has significantly humanized us over the centuries. And yet, notice how the man in the street screams for blood, how pools of blood and broken bodies litter certain streets as the literal ethic of An Eye for an Eye is blasted and shot and bombed into onto our screens every day. Looking at the Hammurabi stele, I wonder if the human inclination toward vengeance is something our species can one day transcend or if we're stuck with this unfortunate wiring. Gandhi was right. I believe that there is a better path which seeks to define justice in terms that go beyond retribution. 

A Thin Slice From the midst of the Metta Sutta - Another Ethic
...Let none through anger or ill-will
Wish harm upon another.
Even as a mother protects with her life
Her child, her only child,
So with a boundless heart
Should one cherish all living beings;
Radiating kindness over the entire world:
Spreading upwards to the skies,
And downwards to the depths;
Outwards and Unbounded,
Freed from hatred and ill-will...  

The Metta Sutta [a pretty short piece, just a page long] is about 2,500 years old. The message sounds thoroughly utopian. Still, there is an unapologetic suggestion that people can attain the clarity of vision that would open all of eyes to a much more expansive vision, an understanding that all life is deeply interconnected, that the barriers between us and them result from the blindness to which Gandhi alluded. Freed from hatred and ill-will ....could you possibly imagine that?

Shabbat Shalom,
Rabbi Aaron

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