Mishpatim

“An eye for an eye . . .” (Shemos 21: 24)

“If one blinds his friend’s eye, he must pay restitution for the value of the eye. (This is found by calculating) the loss in value incurred if he would be sold as slave in the marketplace. So, too, is the explanation for all of the examples in our verse, and the text does not mean to indicate a “lex talonis”, taking one limb in exchange for another, as our sages explained in chapter 8 of Baba Kama (daf 84).” (Rashi, ibid.)

If we analyze this passage in the gemara that Rashi cites, we can find a variety of reasons why our verse cannot be taken literally. For example, one of the sages cites a “gezeira shava”, a principle of Biblical analysis which teaches that ideas which use similar language have similar halachos. We learn from this analysis that our verse must refer to restitution. Another explanation why the text cannot be taken literally is the impossibility of equal justice, since the limbs of two individuals are not equally valuable. Nonetheless, it is puzzling why the Torah articulates this principle of monetary restitution in language which implies literally the “lex talonis”, a limb in exchange for a limb?

It would seem from the foregoing, the Torah reveals to us a fundamental aspect of the liability of torts. In truth, the requirement to pay the loss in value a damaged individual would accrue if he would be sold as a slave in the marketplace is not the exact restitution necessary. Rather, the person who causes the damage should be required to provide another limb for the wounded person’s use. Indeed, if it would be possible to remove the eye of the person who caused the damage and give it to the wounded person, that would be the intent of the Torah. However, since this is not possible, resulting only in a loss for the person who caused the damage and no gain for the wounded party, the Torah instead demands monetary restitution.

With this explanation, we can understand deeply into the relationship between the “simple meaning” (or peshat) and the midrashic explanation. Whereas the peshat is the source of the fundamental meaning and obligation of the Torah text, the midrash explains how it is possible to bring the theoretical Torah ideal into practical reality. Thus, both explanations, the peshat and the drash, are true—“Elu v’elu divrei Elokim chaim” both are the words of the living G-d.

(This d'var Torah is based on the work Peninei Daas, the essays of the Telsher Rosh HaYeshiva Rabbi Eliyahu Meir Bloch, zt"l, edited by Rabbi Noson Tzvi Baron, shlit"a, and Rabbi Avrahom Chaim Levin, shlit"a, vol. 1, p. 205)