Just a week ago, I heard a TV news commentator discussing one of the presidential contenders’ positions on a particular subject. He described the hardline posture as “Old Testament” strictness, as opposed to “New Testament” forbearance, as in “turning the other cheek.” He explicitly referred to the passage in this week’s Torah portion, Parashat Mishpatim, which calls for “an eye for an eye…”
The fuller text says “if … 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.” While this commentator and many others cite this passage as evidence that Torah law is harsh, he actually misrepresents the Torah’s message.
This law in Exodus’ “Covenant Code” is known in Latin as lex taliones, the law of retaliation. It tries to make punishments perfectly fit the crimes that were perpetrated. By contrast, in the ancient Code of Hammurabi, who ruled in Babylonia from 1728 to 1686 BCE, we find a law: “If a nobleman committed robbery and has been caught, that nobleman shall be put to death.” Another law states: “If a woman wine seller, instead of receiving grain for the price of the drink, has received money by the large weight and so has made the value of the drink less than the value of the grain, they shall prove it against that wine seller and throw her into the water.” Preventing the death penalty for economic crimes is one target of the “eye for an eye” law.
The Torah also affirms the fundamental equality of all human beings through this legislation. By stipulating the death penalty for killing a person, the Torah is making it clear that it considers all lives to be sacred; no life is more special than any other life. And though the rabbis did not strike the “life for life” passage from our portion or anywhere else in the Torah, they developed rules of testimony and adjudication that made the death penalty virtually impossible to administer.
The Torah’s emphasis on equality is also evident in contrast to other laws in Hammurabi’s code: “If a nobleman knocked out a tooth of a nobleman of his own rank, they shall knock out his tooth. If he knocked out a commoner’s tooth, he shall pay one-third mina (an ancient weight) of silver.” In other words, Babylonian justice depended on who you were, what your status was. The Torah’s law makes no distinction among people; justice does not depend on status, wealth or connections.
While the Torah sounds like it demands physical punishment for physical injuries, the rabbis make it clear that monetary compensation for the damage is what is expected. The Torah even hints at this when it says “you shall pay,” v’natata, in Hebrew. ”
With the Jewish tradition’s emphasis on equality for all before the law, it is essential that we moderns consider our own American system before impugning the Torah as harsh. Consider the reality that many more Americans of color have been incarcerated on drug charges than have white Americans. Consider that more poor people have been executed than people who could afford top-notch defense attorneys. The #BlackLivesMatter movement is but one effort which insists that everyone in America be treated the same way by our judicial system. Our country is struggling to address these issues; they are far from being resolved.
What some people see as harsh, “Old Testament” justice is actually an affirmation of the inherent equality of all human life, in law, not just in lip service. By insisting on appropriate justice, not vengeance or overreaction, and by insuring that the law is applied equally for everyone we affirm the Torah’s compassion and mercy. When law is fair, everyone can feel protected, and everyone can feel invested in it. The Torah is an old teaching, but its wisdom still holds out lofty goals for us to achieve today and tomorrow, as we strive to create a “more perfect union.”
WAYNE M. FRANKLIN is senior rabbi of Temple Emanu-El in Providence.