Mishpatim: Divine Justice, Human Mercy

By: Rabbi Jay Kelman |

"An eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot” (Shemot 21:24).

Perhaps no Biblical verse has generated as much controversy regarding its true meaning. As is well known, traditional Jewish exegesis has always maintained that this verse requires monetary compensation for bodily injuries caused and monetary compensation only. Critics throughout the ages have argued that the true meaning of the text is exactly what it appears to say, namely, that one who blinds another must lose his own eyes. They claim that the rabbis, seeking to make the Torah more palatable to societal norms of their day, changed the meaning from its original harsh, even primitive formulation. Although many a believer in the Oral Law would recoil from such an approach, it is not an unreasonable one. After all, if the Torah meant monetary payment, why did it not say so? If the Torah means money, why say “an eye for an eye”?

While in actual fact, our society does put monetary value on an eye (just look at your insurance forms), the Torah could not say so. To do so would border on blasphemy—how can money compensate for loss of an eye? From the perspective of the Divine author of the Torah, the only true punishment is “an eye for an eye”. However, from the perspective of the Oral Law—the actual human implementation of the Torah—we do not seek such punishment. After all, removing the eye of the perpetrator does not actually help the victim. While money will not bring back anyone’s eyesight, it does at least offer some minor (albeit inadequate) form of compensation. Taken together, the Torah is teaching us that one who blinds another cannot gain full atonement for his actions. The monetary payment is no more than a poor substitute.

In truth, this “conflict” between the Written and Oral Law is a recurring one throughout the Chumash, reflecting the multiple truths and multi-faceted lessons of the Torah. Let us examine only our parsha.

“If the slave declares, ‘I am fond of my master, my wife and my children, I will not go free’... his master shall pierce his ear...and he shall serve him forever” (Shemot 21:5-6). Alas, the rabbis declare that forever only lasts until the next yovel, jubilee year, which might be only one year away and never more than 49. One who desires to be a slave, who wants a human and not a Divine master, is one who should never experience true freedom again. Yet to deny freedom because of a  mistake of some fifty years ago would be unduly harsh, and the Torah knows that. It thus teaches us orally—off the books, so to speak—that freedom is never permanently denied.

“But if the ox was in the habit of goring on previous occasions, and the owner had been warned but did not guard it and it killed a man or a woman, the ox shall be stoned and its owners shall also die” (Shemot 21:29).

The Torah is quite clear. If one has been officially warned to guard one's wild animal, yet one did not do so and it kills somebody, you are to be put to death. Yet no court is allowed to execute someone for a murder they did not commit. The Torah presents an idea that it never meant to be taken literally, to teach that a negligent owner of an animal deserves to die, though he will not actually be put to death by any human agent.  

Parshat Mishpatim lists many a capital offence for which the perpetrator must “surely be put to death”. But, although the death penalty is often mandated by the Torah, it was rarely carried out. The Torah written by G-d demands much; deviation from the Divine command should bring harsh judgment, even death. How can it be otherwise?  Yet the Oral Law, developed by humans and for humans, understood that in this world, the world of falsehood and sin, G-d demands much less. We get second chances. We are often absolved of responsibility and can rehabilitate ourselves by paying a little bit of money. We must be cognizant of the strict justice of G-d’s Torah, while recognizing the mercy that G-d has instructed us to apply in our daily living.