A Sweet Justice

Rabbi Eitan Cooper

This week’s Torah portion is Mishpatim: Exodus 21:1 – 24:18

In response to the rule of “an eye for an eye,” Tevye (from “Fiddler on The Roof”) famously and bluntly said that this law would make the whole world eyeless and toothless. For centuries, many have raised similar challenges with this dictum, found in this week’s parsha, Mishpatim. The verses in our portion say (Shemot 21:24-25): “Eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.”

For many people, these verses directly contradict our modern sensibilities. Corporal punishment can feel primitive and wrong. How can the Torah — the book we hold dear and which instructs our way of life — teach us something that does not seem to fit at all into our current way of living?

As it turns out, the rabbis of the Talmud struggled with this same question. They could not fathom that the Torah instructed us to literally cut someone’s body part off as punishment.

The eighth chapter of Tractate Bava Kama opens with many attempts to prove that the Torah must have been referring to a financial penalty, and not a physical one. Meaning, cutting someone’s hand off results in having to pay a monetary fine. Eventually, one of the proofs is accepted, and the rabbis conclude that we are not meant to interpret this section of the Torah literally.

This all begs the question — if the actual law is to pay a monetary fine, why does the Torah not just say so? Why did the Torah say one thing, but mean another? Why cause this clash to begin with?

Rabbi Yosef Dov Soloveitchik suggests that both readings — the literal eye for an eye and the monetary fine — are necessary. Had the Torah taught us “If you take someone’s eye out, you compensate with money,” it may not have fully communicated the atrocity of the crime. A cruel person who is wealthy may have concluded that they can freely harm people, and the only punishment they would incur would not really affect them. Instead, the Torah includes the literal reading to teach that blinding a person is such a terrible act that really, the criminal deserves to have his own eye removed. This is “Midat HaDin,” or “strict justice.” But we cannot uphold such strict justice in our courts. We need a “sweeter” justice. He says:

“What does the attribute of ‘sweetening justice’ or ‘attenuated justice’ say? It says, ‘Really, he does deserve that punishment.’ I do not disagree with strict justice. One should indeed take away his sense of sight just as he did to his victim. … But we cannot act on this. It is too terrible for the court, for the judge to undertake strict justice. Man is not great enough, he does not have the moral right to implement a strict verdict which is so cruel.”

In other words, the written Torah’s rendering is needed to convey to us the gravity of this person’s crime. It suggests to us an underlying ethic — that maiming someone is absolutely cruel — so cruel that it deserves a cruel punishment. Concurrently, the Oral Torah, in collaboration, teaches us that we do not have the right or the capacity to deliver this punishment. We must pursue a “sweeter” justice — one that only requires a monetary payment.

Sometimes, when we struggle with a passage in the written Torah such as an “eye for an eye,” we are left only with challenges. This is the “Tevye” response (essentially, to admit that something we learned in the Torah is bothersome). And there is nothing wrong with being like Tevye sometimes and admitting that something we read in the Torah bothers us. But sometimes we stumble across a teaching like that of Rav Soloveitchik’s, which can help us to reconcile our own rational and moral sensibilities with what is written in the Torah.

May we all pursue and experience more of these moments of harmony, even as we continue to struggle sometimes with other sections of the Torah.

Eitan Cooper is the associate rabbi at Beth Sholom Congregation and Talmud Torah in Potomac, Maryland.