Answers to Emor

Emor  5715
Alef.

1. The various approaches of ChaZaL to demonstrate that “Ayin Tachat Ayin” is not to be interpreted literally, but rather as indicative of a monetary settlement/fine:

    Bava Kama 83b:

a.  From the language of the Gemora (Makeh Adam U’Makeh Beheima) it appears that we are dealing with a Hekesh (two elements in same verse demonstrating relationship.) Yet when we look in VaYikra 24, the chapter referenced, we find no such verse:

ויקרא פרק כד

(יז) ואיש כי יכה כל נפש אדם מות יומת:

(יח) ומכה נפש בהמה ישלמנה נפש תחת נפש:

(יט) ואיש כי יתן מום בעמיתו כאשר עשה כן יעשה לו:

(כ) שבר תחת שבר עין תחת עין שן תחת שן כאשר יתן מום באדם כן ינתן בו:

(כא) ומכה בהמה ישלמנה ומכה אדם יומת:

(כב) משפט אחד יהיה לכם כגר כאזרח יהיה כי אני יקוק אלקיכם:

Consequently, the verses need to be interpreted as follows:

17- Murder of another human being

18- Murder of an animal

19- Injuring another human being, the implication that the principle of Lex Talionis is followed.

20- Examples of L.T.

21-There appears to be a difference in approach to compensating the injury to a person as opposed to the injury to an animal.

22- There should be consistency with respect to how perpetrators, victims are treated before the law.

The Derasha of the Talmud appears to key on 21, asserting that despite the fact that the verbs in the respective cases are different, Yeshalmena, Yumat, they are to be interpreted comparably since they appear within the same verse. Consequently the word “Yumat” should be understood figuratively in light of the term “Yeshalmena” in the first clause of the verse, i.e., “death” in terms of payment rather than literal punishment.

b.  Inference—From a murderer, no monetary compensation (Kofer) can atone for his crime, implying that for a lesser crime, i.e., causing injury, monetary compensation would be not only acceptable, but expected.

c. Logic—If the perpetrator already has the infirmity that he is causing to another, i.e., he is blind and he blinds another, it would be impossible to apply any punishment to him. In light of v. 22 above, i.e., all perpetrators should be treated equally, this is possible only if a monetary punishment is assessed.

d. Gezeira Shava—One of the 13 hermeneutic principles of R. Yishmael states that if a similar word appears in verses dealing with two disparate contexts, there is a connection between the two contexts. In this case, because “Tachat” appears both with regard to injuries to people (VaYikra 24:20) “Ayin Tachat Ayin”, as well as where animals are injured (Shemot 21:36) “Shalem Yeshalem Shor Tachat Shor”, the linkage is to be interpreted as there is to be payment in both instances.

e.  Logic—It is impossible to assure that were the perpetrator’s eye to be taken out, that is all the damage that will be done to him. Consequently, he would be punished beyond what he originally did were he to suffer not only e.g., his eye to be taken out, but him dying as a result of the operation. The only way to assure that this type of “collateral punishment” not take place is to reserve the punishment to monetary payment.

RaMBaM

f. Ta’amei HaMitzvot—Ayin Tachat Ayin was never meant to be taken literally, but rather delineates how the perpetrator should feel about what he has done, even though he only has to make a monetary payment.

g.  Binyan Av (paradigm)—From Shemot 21:18-9, where the Tora speaks of the consequences for someone who has struck another with his fist or with a stone—the payments of minimum wage as long as he cannot work and compensation for all medical bills associated with the injury until the victim is completely recovered—this establishes the frame of reference by which to understand all subsequent references to injuries that men cause to other men.

h. Halacha LeMoshe MiSinai—Despite the fact that there appears to be a disconnect between Tora SheB’Ktav and SheB’Al Peh, nevertheless there never was a moment from the time that the Tora was given at Sinai when the interpretation of these verses was anything other than monetary compensation. 

2. Assuming that RaMBaM is working off the proofs that the Gemora presents, as is pointed out in 1a, the ostensible Hekesh does not really exist. Therefore RaMBaM skips the first proof and begins with the second. Yet if there is a Masoret that a Gezeira Shava exists focusing on the word “Tachat”, a derivation that is not subject to logical analysis, but rather something that either you receive as a tradition, or you don’t, in addition to claiming that one has not received that particular tradition, it is helpful to also demonstrate that the word involved “Tachat” has a different purpose and is therefore not available, from your perspective for a Gezeira Shava derivation. 

3.  The last proof is one of Masoret, i.e., if throughout history a particular interpretation of the terms similar to Ayin Tachat Ayin was followed, then we must per force assume that this was the intended interpretation from the moment that the Halacha was revealed to Moshe on Sinai.

Beit.

Gur Aryeh is emphasizing that even if in the instances of both injuring an animal and injuring a person, there is a financial settlement, they are still qualitatively different actions. In the former instance, all that was harmed was an object’s value, and once that value has been replaced, everyone can get on with their lives. However, with respect to an injury suffered by another human being, in addition to any monetary loss, there is also an attack upon the individual’s dignity. The fact that Boshet (the payment for embarrassment) is one of the five standard payments, it is obvious that one’s psychological state is included in the evaluation of any injury. Consequently, to simply hand the money over without expressions of apology and requests for forgiveness suggests that the perpetrator is not really penitent regarding what he has done. (However, I don’t understand why the same is not the case when someone damages another’s property. The inconvenience, emotional disruption, sense of being attacked even if only indirectly, would seem to me sufficient reason to require forgiveness also where one damages or destroys another’s property. Ve Tzorech Iyun.) 

Gimel.

1. ויותר קשה הכווי' והפצע והחבורה כי אם היו במקום מסוכן אולי ימות ואין הדעת סובלת Ibn Ezra distinguishes harm to one’s eye from harm that is inflicted in the form of a wound or burn. (Apparently the Ibn Ezra did not believe that the eye is an area of the body that is necessarily Mesukan (dangerous) for the health of the entire body. That certainly could be disputed.) Whereas acc. to Ibn Ezra the eye is a finite organ, independent of the rest of the body’s functions, inflicting a wound or burn on a particular part of the body that could ultimately result in the death of the person, would be much more difficult to carry out with precision and the absence of side-effects.

      הראשון בא בלא כוונה ואיך ייתכן לעשות שבר כמוהו The initiation injury was done without specific knowledge of the precise results of the attack. But now that the court might want to replicate exactly on the body of the perpetrator what had been done to the victim, it should be impossible to do so given the tremendous number of variables involved.

      דברי קבלה The Rabbinic tradition that defines Ayin Tachat Ayin as an indication that there is to be a financial settlement.

      כי על הרוב דבר הכתוב (what could be said on behalf of those who wish to take the verse in the Tora literally.) While there might be cases whereby the perpetrator will get off scot free because of his disabilities, e.g., a blind person blinding a sighted person, whereby Ayin Tachat Ayin cannot be carried out, the law is created to apply to people of normal circumstances. Consequently, even if individuals might fall between the cracks, for the most part the law will discourage the average person from injuring another, and in the case where an injury does occur, there will be compensation for the victim. (The argument is rendered moot when the Rabbinic Tradition asserts that there is always monetary compensation, precluding, or at least diminishing someone “falling through the cracks.”

2.  The first two challenges of Ben Zuta involve reading verses, i.e., what is the implication of the phrase “Kein Yinatein Bo”; how is Shimshon’s prediction of “Kein Asiti Lahem” to be understood? The third challenge is a logical one, i.e., there are situations where the perpetrator will get away with what he has done without penalty, e.g., a poor person who injures another and will not be able to pay one or more of the five requisite payments. (Isn’t this a situation where one would have to become an Eved Ivri?) 

3. R. Saadia uses a grammatical inference (“Al” replacing “B”,) a proof from a biblical story (although Shimshon used a language that implied that he literally would do to the Philistines that which had been done by them to him, in fact the punishments that he brought to bear upon them were different from the ones that he and his family had suffered,) and then a logical proof from a situation that would not lend itself to a literally rendering of “Ayin Tachat Ayin,” i.e., a blind person blinding another.

   The utilization of the verb “Oseh” and the structure of the verse in Shoftim 15:11) is parallel to the verse in VaYikra 24:19 (see 1a above.)