Mishpatim: An eye for an eye
Following the gathering at Sinai, the Torah’s narrative resumes with this week’s parasha, a series of laws and remedies for righting civil wrongs. One passage in this week’s text has confounded readers probably from the time it was written down. I refer to Exodus 21:23–25 which reads:
וְאִם-אָסוֹן יִהְיֶה — וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ עַיִן תַּחַת עַיִן שֵׁן תַּחַת שֵׁן יָד תַּחַת יָד רֶגֶל תַּחַת רָגֶל כְּוִיָּה תַּחַת כְּוִיָּה פֶּצַע תַּחַת פָּצַע חַבּוּרָה תַּחַת חַבּוּרָה
“But if there is grave harm, then you shall give a life in place of a life, an eye in place of an eye, a tooth in place of a tooth, a hand in place of a hand, a foot in place of a foot, a burn in place of a burn, a wound in place of a wound, a stripe in place of a stripe.” (my translation).
Referred to often by its Latin name, lex talionis, meaning ‘law of retribution’, this passage seems to convey the idea that in order to mete out justice properly, a society must punish a perpetrator of harm in equal measure to the harm that perpetrator caused to another. Originating in the law codes of ancient Babylon, the law suggests that justice is done when the victim exacts revenge — but no more revenge than is justified by the original wrong. And we can see how this system may have mitigated escalating violence in ancient times by placing limits on vigilantism and the inevitable flare of human emotion that accompanies an injury.
But to the rabbis, the idea that the Torah would sanction the maiming of human beings appeared barbaric and called into question the dignity of God’s creation. The Talmud, therefore, radically recasts the plain meaning of the passage and insisted that in fact, the victim of a harm should accept the equal value of the harm suffered. They develop a scheme (see Bava Kamma 83b) whereby a court could determine the monetary value of a wrong and a victim could petition and recover through compensatory damages.
The problem with this reframing, of course, is that the Torah is deliberately listing harms that are irreparable and therefore practically impossible to repair with monetary compensation. A court may be able to calculate money damages for a life altering injury, but it cannot make a victim whole again. When an eye, a tooth, a hand, or a foot is removed, a court cannot cause it to regenerate and allow the victim to live as they did before.
Sometimes, we simply cannot turn back the clock. Certain types of loss, caused by human animus or negligence, fundamentally alter the course of human life and no compensation can ever properly make it right. And while the ancient way — to retaliate with physical violence against the perpetrator — might be emotionally satisfying, it cannot restore what was in place before. Our task, therefore, as students of Torah, is to look at justice as transformation. Notice that the text employs the verb וְנָתַתָּה meaning “you shall give”. We are not to take from a perpetrator or from the world what was taken from us, but rather to give. When an eye is taken, it is upon us as a society to provide the world with a new eye, a new vision to bring us forward.
This summer when I traveled to Palestine, I visited several refugee camps and saw the devastation the people there have suffered for seventy years. Refugees in the West Bank live in a perpetual state of injustice. When they were displaced from their homes in what is now Israel, they built tents and waited to go back. The United Nations called upon Israel to let the refugees return to their homes and property, but instead, they were left where they were and the property they left behind was redistributed to Jewish immigrants arriving from the European DP camps and other parts of the Arab world and North Africa. The UN developed a special agency to meet the needs of this exceedingly large population, UNRWA, which the Trump administration is now threatening to defund. They experience occupation on top of dispossession, facing night raids, arbitrary imprisonment, scarce access to resources, and extreme limits on their freedom of movement.
As I walked around these camps, once tents, now replaced by cinder block structures, with new stories built atop ground floors as families grew larger, I realized that Israel will never be able to compensate them fully for the damage they have suffered and proposals to offer them money for the devastation of their communities are truly insulting. We cannot turn the clock back to 1947, but we can transform the way we view the future.
Because the question of the refugees was considered a ‘final status issue’ in the peace process, many of my American Jewish and Israeli Jewish friends dismiss out of hand the idea that the refugees will ever see justice. My friends are decent people, but they believe that allowing the refugees to return to their homes will pose a ‘demographic threat’ to Israel’s ‘Jewish and democratic’ governance model. Uri Avnery, a lion of the Israeli peace movement whose thinking has greatly influenced my own, claims that the right of return for Palestinian refugees is impossible, because Israel “will never commit suicide.” This is the dehumanizing language even staunch Jewish progressives use to describe a population of displaced people who are more than entitled to justice. I think we can and must do better.
My friend Tom Pessah, writing in 972 magazine, argues that the right of return for Palestinian refugees is feasible, while respecting the rights and identities of all those who live in Israel-Palestine. Citing the Palestinian geographer Salman Abu Sitta, Tom writes that 85% of the areas inside Israel where Palestinian refugees seek to resettle are sparsely populated. Organizations like BADIL in Bethlehem and the Israeli organization Zochrot, have started to craft documents detailing how the right of return might be implemented. Their ideas, taking inspiration from other struggles, are worthy of our consideration and our examination.
I believe that the current generation of Jewish Americans has the power to end the occupation and demand better from our institutions, but in order to do that, we must not ignore the most challenging questions that previous generations swept under the rug. We must not allow those who stoke our fears to limit our thinking and our capacity for joining the Palestinians in making change. The question of the Palestinian refugees and their right to return to the homes and communities they abandoned in 1947–48 is one such question. Right now, there might not be consensus in our movement about how to bring about justice for Palestinian refugees, but if we listen to them and challenge ourselves deeply, we can give the world new, transformative vision. We can fulfill the commandment to give an eye in place of an eye.
