What are we to make of a provision in Torah that seems barbaric?
In my last posting, I make a case for the rather humane values we find expressed in the Book of the Covenant (Exodus 21-23). Humane, I say, when compared to other laws codes of the ancient Near East, such as the law codes of Mesopotamia.
But I can imagine a critic immediately charging: How can you say that when the Book of the Covenant contains that barbaric instruction: an eye for an eye, a tooth for a tooth. This provision is known by its Latin designation: the lex talionis (the law of retaliation). And to most modern people, such maiming punishment sounds far from humane.
So what are we to make of the lex talionis? Does it subvert the humanity of the Torah law tradition? I think the critic deserves an answer. And I will try to give one. One that I will acknowledge I have picked up from the great Jewish scholar Nahum M. Sarna from his discussion of the lex talionis in his book Exploring Exodus: The Origins of Biblical Israel.*
The principle of the lex talionis is not exclusive to Israel. We also find it expressed in the law code of the Babylonian king Hammurabi. In fact, Sarna sees the principle as being already a part of Israel’s cultural heritage in pre-Exodus times.
The expression of the lex talionis appears three times in the Torah, once in the Book of the Covenant, once in Leviticus, and one more time in Deuteronomy. Each time it fits oddly into its context. Sarna says this indicates that the principle, absorbed from the wider Semitic culture of the ancient Near East, has undergone a distinct development in Israelite penal law.
So let’s look at those three appearances.
First, Exodus 21:22-25:
If people are fighting and hit a pregnant woman and she gives birth prematurely but there is no serious injury, the offender must be fined whatever the woman’s husband demands and the court allows. But if there is serious injury, you are to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.
This is surely an odd context in which to introduce the lex talionis. The situation described is a physical fight between two men in which a pregnant woman is injured as collateral damage. But just what is the serious injury (the word is ‘ason in Hebrew). How do we translate this rare word? It is referring to a premature delivery, a miscarriage, or the mother’s death. The NRSV translation makes the choice of serious injury, but that is only one translation option.
Only if the woman dies could we have a situation in which the lex talionis could be applied. Then the offender’s wife would need to die. But if it is a miscarriage or premature birth, how would the penalty of tooth for a tooth be applied to a fetus?
Concludes Sarna: In short, the list of talionic provisions must be understood as a general statement of legal policy. It is a rhetorical formulation in concrete terms of an abstract principle–the law of equivalence. On an operational level this is possible only in respect of the death penalty.**
Second, Leviticus 24:17-22:
Anyone who kills a human being shall be put to death. Anyone who kills an animal shall make restitution for it, life for life. Anyone who maims another shall suffer the same injury in return: fracture for fracture, eye for eye, tooth for tooth; the injury inflicted is the injury to be suffered. One who kills an animal shall make restitution for it; but one who kills a human being shall be put to death. You shall have one law for the alien and for the citizen: for I am the Lord your God.
This passage falls in the middle of a narrative about a man of mixed Israelite-Egyptian heritage who blasphemes the name of God in a curse. When he is brought before Moses, Moses decrees that he shall be put to death, because anyone who blasphemes God’s name must be executed by stoning
Then Moses supports his judgment with the words recorded in verses 17-22. Here is where the citation of the lex talionis occurs. But how is the law applicable in this case? The blasphemer has caused no death or physical injury to anyone. Rather Moses seems to cite the law to make the point that Israel’s laws are applicable to both alien and citizen alike. There is to be no distinction made because of one’s ethnic identity.
For Sarna, this second example demonstrates that the lex talionis has become a legal formula establishing fairness before the law.
Further evidence that it has become a legal formula appears in Judges 15. There we are told that in a dispute between the Philistines and Samson, the Philistines burn to death Samson’s wife and her father. In retaliation, Samson goes on a rage and massacres a large body of Philistine warriors.
When challenged about his action, Samson replies, As they did to me, so I have done to them (Judges 15:11). He does not mean he has burned their wives and their wives’ fathers. Rather he alludes to the lex talionis as a formula that the Philistines have received a deserved revenge.
Now, for the third citation: Deuteronomy 19:18-19, 21:
If the witness is a false witness, having testified falsely against another, then you shall do to the false witness just as the false witness had meant to do to the other. So you shall purge the evil from your midst… Show no pity: life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.
In this case, the text is dealing with a situation of a false witness in a court case. If the false witness is shown to be deliberately false, then the consequences that would have fallen on the defendant shall be applied to the false witness. In this context, the text cites the lex talionis.
But this too is an odd place for the citation. The false witness has caused no physical damage or death. So the citation seems to function to emphasize the legal principle of equivalence in an effort to establish fairness in justice. Says Sarna: It cannot possibly be interpreted here literally.***
As mentioned earlier, the lex talionis appears in other ancient Near Eastern legal contexts, like the law code of Hammurabi. There it is often applied with some real brutality. Social class could also moderate or intensify the application. As an example, consider these laws from Hammurabi’s code that apply the lex talionis:
Law 196: If a seignior has destroyed the eye of a member of the aristocracy, they shall destroy his eye.
Law 197: If he has broken another seignior’s bone, they shall break his bone.
Law 198: If he has destroyed the eye of a commoner or broken the bone of a commoner, he shall pay one mina of silver.
Law 199: If he has destroyed the eye of a seignior’s slave or broken the bone of a seignior’s slave, he shall pay one-half his value.
Law 200: If a seignior has knocked out the tooth of a seignior of his own rank, they shall knock out his tooth.
Law 201: If he has knocked out a commoner’s tooth, he shall pay one-third mina of silver.†
Israel accepts the legal principle of the lex talionis that was current in legal circles in the countries surrounding it. But concludes Sarna: [In Israelite law] unlike its Near Eastern predecessors, the ‘eye for an eye’ formula was stripped of its literal meaning and became fossilized as the way in which the abstract legal formula of equivalent restitution was expressed. The thrust of the talionic principle was not vengeful or penal, but compensatory.††
Adopting an Attitude of Humility
Whether you find Sarna’s argument convincing or not, his discussion should instill a sense of humility in our reading of Scripture. We often assume we know exactly what a biblical passage means and how it should be applied. But both a close reading of the text as well as a study of the cultural world in which the biblical writers were writing may call into serious question any hasty assumptions we make about a particular text.
* Nahum M. Sarna, Exploring Exodus: The Origins of Biblical Israel. New York: Schocken Books, 1996.
** Sarna, Exploring Exodus. Page 186.
*** Sarna, Page 188.
† The Code of Hammurabi, translated by Theophile J. Meek, published in The Ancient Near East: An Anthology of Texts and Pictures, edited by James B. Pritchard. Princeton University Press, 1958.
†† Sarna, Page 189.