​Parashat Emor 5781, 2021: "Ayin Tachat Ayin"

 

​Rabbi David Etengoff
 
Dedicated to the sacred memories of my mother, Miriam Tovah bat Aharon Hakohen, father-in-law, Levi ben Yitzhak, sister, Shulamit bat Menachem, sister-in-law, Ruchama Rivka Sondra bat Yechiel, Chana bat Shmuel, Yehonatan Binyamin ben Mordechai Meir Halevi, Shoshana Elka bat Avraham, Tikvah bat Rivka Perel, Peretz ben Chaim, Chaya Sarah bat Reb Yechezkel Shraga, Shmuel Yosef ben Reuven, the Kedoshim of Har Nof, Pittsburgh, and Jersey City, and the refuah shlaimah of Mordechai HaLevi ben Miriam Tovah, Moshe ben Itta Golda, Yocheved Dafneh bat Dinah Zehavah, Reuven Shmuel ben Leah, and the health and safety of our brothers and sisters in Israel and around the world.
 
One of the well-known halachot found in our parasha is the law of retributive justice (lex talionis), known popularly as “an eye for an eye and a tooth for a tooth (ayin tachat ayin):"

And a man who inflicts an injury upon his fellow man just as he did, so shall be done to him [namely], fracture for fracture, eye for eye, tooth for tooth. Just as he inflicted an injury upon a person, so shall it be inflicted upon him." (Sefer Vayikra 24:19-20, this and all Tanach translations, The Judaica Press Complete Tanach)
 
This is the second time we have encountered this halacha, as it initially appears in Parashat Mishpatim: “But if there is a fatality, you shall give a life for a life, ayin tachat ayin, a tooth for a tooth, a hand for a hand, a foot for a foot, a burn for a burn, a wound for a wound, a bruise for a bruise.” (Sefer Shemot 21:23-25)  It seems that our four verses suggest that if the mazik (one who physically injures another) is to receive his just consequences, his punishment must consist of receiving the exact same injury he inflicted on the nizak (harmed individual), a practice known as “mirror punishment.” In fact, such an approach was followed in the ancient Mesopotamian Code of Hammurabi (approximately 1750 BCE).
 
A very different interpretation, however, is found within the Rabbinic tradition. One of the earliest of these texts to analyze our pasukim is the second century work, Mechilta d’Rabbi Yishmael, the halachic midrash on Sefer Shemot:

“Ayin tachat ayin”: Monetary compensation (mammon). You say it is mammon, yet perhaps the phrase is to be taken in a literal fashion! Rabbi Yisrael always explained this phrase in the following manner… [Based upon the analysis of various Torah passages, we learn that] just like injuries against an animal are redressed by monetary compensation (tashlumin), so, too, are damages against a person remedied by monetary compensation.” (Mesechta d’Nezikin, Parasha VIII, translation and brackets my own)
 
In sum, Rabbi Yishmael categorically rejects the concept of mirror punishment and asserts that the Torah champions monetary payment in its stead. Moreover, both he and Rabbi Shimon ben Yochai are quoted as maintaining this position in Talmud Bavli, Baba Kama 84a. This is the accepted p’sak din (halachic conclusion), as we find in the Rambam’s (1135-1204) Mishneh Torah, Hilchot Chovel u’Mazik I:1-6:

What is meant by “damages?” If a person cuts off the hand or the foot of a colleague, we theoretically consider the injured colleague as a servant being sold in the marketplace and evaluate his value before the injury and his value afterwards. The person who caused the injury must pay the depreciation in value. This is alluded to in the Torah’s phrase, “ayin tachat ayin.” The oral tradition interprets “tachat,” translated as “for,” as an indication that the verse requires financial recompense (l’shalame mammon). (1, all Mishneh Torah translations, Rabbi Eliyahu Touger)
 
The Rambam expands upon his understanding of ayin tachat ayin in the following fashion:
How do we know that the intent of the Torah’s statement regarding the loss of a limb, “ayin tachat ayin,” is financial restitution? That same verse continues, “a wound tachat a wound.” And regarding the penalty for a giving a colleague a wound, it is explicitly stated: “When a man strikes his colleague with a stone or a fist… he should pay for his being idled and for his medical expenses.” (Sefer Shemot 21:18-19) Thus, we learn that the word tachat mentioned regarding a wound indicates the necessity for financial restitution, and so one can conclude that the meaning of the same word regarding an eye or another limb is also financial restitution. (5)
 
In addition, the Rambam utilizes ayin tachat ayin as a platform for expounding upon the inextricable link that obtains between the Written Law (Torah She’Bichtav) and the Oral Law (Torah She’Ba’al Peh):

Although these interpretations are obvious from the study of the Written Law, and they are explicitly mentioned in the Oral Tradition transmitted by Moshe from Mount Sinai, they are all regarded as halachot from Moshe. This is what our ancestors saw in the court of Yehoshua and in the court of Shmuel of Ramah, and in every single Jewish court that has functioned from the days of Moshe our teacher until the present age. (6)
 
The Rambam’s first sentence is more or less what we would expect in reference to the connection between Torah She’Bichtav and Torah She’Ba’al Peh. What, however, does the phrase, “this is what our ancestors saw in the court of Yehoshua and in the court of Shmuel of Ramah…,” add to this analysis? My rebbe and mentor, Rabbi Joseph B. Soloveitchik zatzal (1903-1993), known as “the Rav” by his students and followers, addresses this unusual formulation in his 1964 Yahrzeit drasha for his father, Rav Moshe Soloveitchik zatzal. The Rav calls this act of bearing witness, massoret ha’ra’iyah, a unique aspect of Torah She’Ba’al Peh that is acquired through having seen actual court cases and the decisions that were rendered. In our particular instance this refers to the countless piskei din (halachic decisions) that conclude that ayin tachat ayin must be understood as mammon.
 
How is this massoret ha’ra’iyah to be differentiated from other parts of Torah She’Ba’al Peh? The Rav notes that in almost all areas of Torah exegesis, it is acceptable to explain a verse according to its peshat, rather than according to the drashot found in Oral Law. In the case of massoret ha’ra’iyah, however, it is forbidden to follow such an approach:

But in reference to the interpretations of these verses that were accepted and bequeathed throughout the generations, when generation after generation saw the actions of the previous generation and the manner in which they comported themselves, for example regarding ayin tachat ayin, etrog and matters of a similar nature, in these cases they declared that the actual peshat of the text is in accord with the massoret [ha’ra’iyah]. As such, anyone who would interpret these verses in a different manner [regarding their halachic outcome] would be in the category of “megaleh panim b’Torah shelo k’halacha,” one who reveals a heretical interpretation of the Torah that violates the Law, since the accepted peshat within the massorah (Tradition) in this matter is, in itself, Torah She’Ba’al Peh. (Rabbi Herschel Schachter shlita, Divrei HaRav, page 101, translation, underlining and brackets my own)
 
The Rav’s examination of the Rambam’s words, “this is what our ancestors saw in the court of Yehoshua and in the court of Shmuel of Ramah…,” is a conceptual tour de force, for, in so doing, he reveals to us a new aspect of Torah She’Ba’al Peh that brings us to a deeper level of understanding. While the phrase might seem to be a simple narrative assertion by the Rambam, the Rav teaches us that massoret ha’ra’iyah is emblematic of an entire class of statements within Torah She’Ba’al Peh, and serves as a crucial conceptual and halachic link between Torah She’Bichtav and Torah She’Ba’al Peh.
 
May our deeper appreciation of the multiple aspects of Torah She’Ba’al Peh and its unbreakable connection to Torah She’Bichtav bring us ever closer to the Almighty. V’chane yihi ratzon.
 
Shabbat Shalom, and may Hashem in His infinite mercy remove the pandemic from klal Yisrael and all the nations of the world.
 
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