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Rabbi Nataf

Both as a parent and teacher, I remember more than one child asking to know the potential punishment before deciding whether to do what I warned them not to do. They wanted to know whether the punishment was big enough to make them forego the benefit or pleasure they would get from doing what they were not meant to do. (In case you’re wondering, I found keeping them in suspense to be the best strategy!) While most of us have hopefully moved beyond such equations, one of the obvious reasons for punishment is this simple type of deterrence.

While it can be argued that the Torah’s pronouncements about bodily injuries are only dealing with retributive justice, the harsh phrasing of “an eye for an eye” (Shemot 21:24) sounds like the Torah is also seeking to deter people from injuring others. This is especially buttressed by the fact that the actual law is not to take an eye for an eye, but rather to pay its monetary equivalent. This claim would help understand why the Torah would couch the payment in a more severe language than is necessary to convey the actual law. But if so, why not make the law truly an eye for an eye?

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The Gemara (Baba Kamma 84a) makes several powerful arguments as to why this phrase in the Torah cannot be understood literally. One of them is that not everybody’s eye is worth the same. The classic example is if a one-eyed man took out an eye from someone who had two, taking out his one eye would be disproportionate to the damage done.

On the other hand, the traditional understanding – that the Torah is referring to the monetary value of an eye – is not without its difficulties either: Shadal points out that the value of money is also not the same for all people. That is to say that a very wealthy man would not feel much pain in having to pay the value of an eye, and the deterrent power of the punishment would be almost completely cancelled out. Therefore he comes to the very radical conclusion that in such a case, the rabbinic court can invoke the literal meaning of the verse. (Though the same verdict was accomplished in other ways based on a precedent in Sanhedrin 58b, rabbis have scrupulously bypassed Shadal’s approach from time immemorial.)

Regardless of where he took it, Shadal raises an important point – identified earlier by Rambam, among many other legal philosophers both inside and outside of Judaism: “God knew that the judgments of the Torah will always require an extension in some cases and curtailment in others, according to the variety of places, events, and circumstances.” He continues and says that this is why God gave the rabbis in each generation the power to work around this limitation with various tools. The Torah itself however was never to be changed, “for constant changes would tend to disturb the whole system of the Torah, and would lead people to believe that the Torah is not of Divine origin.” (Guide for the Perplexed 3:41)

In other words, there is no way for any written legal code to always match the circumstances of all cases. And as many loopholes as rabbis and legal experts try to close up, there will always be some that simply cannot be resolved, to the detriment of the individuals involved.

My suggestion is that the Torah is actually hinting to this limitation by speaking of “an eye for an eye,” almost waiting for someone to say what Shadal eventually said – that sometimes it should be an eye for an eye! Of course, as Rambam points out, a law of “sometimes” is inherently undermined and ultimately not a law at all. Hence the Torah may be cluing us into what it cannot do in a logical finite world.

While we should think of the Torah as perfect, its perfection is contextual. In other words, we should not place demands upon it that cannot reasonably fulfill. To borrow from the German philosopher, Gottfried Leibniz, it is the best of all possible doctrines.

It is fair enough to ask the rabbis to do their utmost to resolve problems that come out of the nature of a written legal code. But it is equally important to understand that this too is not always possible. Sometimes the only solution is for the person hurt by the system to understand that there is a tremendously important reason for his suffering – perhaps nothing less than the preservation of the Torah as a whole.

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Rabbi Francis Nataf (www.francisnataf.com) is a Jerusalem-based educator and thinker and the author of four books of contemporary Torah commentary. His parshah column appears weekly in The Jewish Press. Rabbi Nataf is also the author of, "Redeeming Relevance in the Book of Leviticus"