Maimonides and Eye for an Eye

In his Guide for the Perplexed 3:41, Maimonides provides an overall framework for the corporal punishments in the Torah:

The punishment meted out to anyone who has done wrong to somebody else consists in general in his being given exactly the same treatment that he has given somebody else…. He who has deprived someone of a member, shall be deprived of a similar member.¹

However, the Talmudic rabbis² declare “eye for an eye…” and other similar statements of the Bible as referring to monetary recompense for physical damage. If so, this does not fit into Maimonides’ theory, as it is not exactly the same treatment.Maimonides heads off that argument by saying:

For at present my purpose is to give reasons for the [biblical] texts and not for the pronouncements of the legal science. Withal I have an opinion concerning this provision of legal science, which should only be expressed by word of mouth.

What does this mean? Does his first statement mean that his purpose in the Guide is not to explain the Talmudic interpretation of Scripture? This is a very strange pronouncement indeed, for the Talmudic interpretation seems to be a principle concern in the Guide. Not only that, it would seem that Maimonides contradicts himself. In his introduction to the Mishnah, he uses “eye for an eye” as a prime example of a traditional and undisputed interpretation that the Talmudic rabbis had of a verse. Another example there is that “fruit of the beautiful tree” in Leviticus 23:40 refers to the Etrog tree, and always had. Does Maimonides mean to suggest that the tree referred to in Scripture has nothing to do with the Etrog tree? Is peshat separated from the law, as the Rashbam (most famously) would have us believe? In his second statement, he says that he has an explanation that he is unwilling to explain publicly, an ominous-sounding pronouncement indicating he has something to hide. Shem Tov asks the question most poignantly (ad loc, my translation):

I am in wonderment that [Maimonides] states that his purpose was to give the reason for Scripture, and not the reason for the Talmud. For Scripture is not authentic, neither completely nor [even] partly, without the tradition of our rabbis as they have explained in the Talmud. Maimonides already taught us [in his introduction to the Mishnah] that were the King Messiah to come and say that the interpretation of the verse isliterally “an eye for an eye”, he would incur the death penalty! … God should forgive him and us!

Friedlander, in his commentary to his translation of the Guide, understands Shem Tov as admitting that Maimonides rejected Talmudic law as the authoritative and valid interpretation of the Biblical text.³

But Friedlander disagrees. He says that Maimonides affirms Talmudic validity of interpretation, but didn’t want to discuss it outright because of fear of Karaites and others:

It seems, however, that the author would not commit his explanation to writing, because he was not quite certain about it, andfeared the criticism of Mahometans or Karaites rather than of his orthodoxbrethren. His interpretation of the Talmudic law was perhaps this: According to the experience the judges had in those days, loss of property causedjust as much pain to the evil-doer as mutilation of the body.

Friedlander thus believes that Maimonides feared explicitly fighting against Karaite positions, coupled with self-doubt whether he knew the true meaning why the traditional understanding was not a literal one.

There are several problems with this. One is that we have no evidence of Maimonides being afraid to state views contrary to Karaite views. Secondly, in the selfsame chapter of the Guide, Maimonides explains the need for the Sanhedrin and why a person who rebels against it would get the death penalty, and there is no bigger polemic against Karaism than that passage. He says there:

If, however, every man of knowledge had been permitted to engage in this speculation concerning particulars, the people would have perished because of the multiplicity of the differences of opinion and the subdivisions of doctrines. Consequently He, may He be exalted, has forbidden all the men of knowledge with the single exception of the Great Court of Law to undertake this, and has those who disagreed with [this Court] killed.

Is there any stronger statement against personal autonomy in interpreting Scripture? Thirdly, as noted by Friedlander himself, Maimonides writes in his introduction to the Mishnah that “eye for an eye” as monetary recompense is an explanation that comes from Sinai, part and parcel with the Torah. Friedlander would have to believe that Maimonides changed his opinion from when he wrote his commentary to the Mishnah and when he wrote the Guide. This isn’t as much an objection, admittedly, as it is certainly possible, but I believe it is not a necessary assumption here.

          Two things are clear: 1) That Maimonides appears to contradict his statements made in his introduction to the Mishnah, and 2) That he appears to make a distinction between Talmudic interpretation and Biblical law.

Having set up these issues, the aim of this paper will be to explain a different approach to the issue of what this passage refers to. It is my belief that Maimonides has stayed true with his statements in his introduction to the Mishnah, and has not changed his mind. Rather, I posit that Maimonides’ true belief is that there are certain laws that could never be carried out in reality, for various reasons. The reason they are on the books, i.e. legislated in the Torah, then, is because of their consistency to the political framework. This, in turn, informs the accepted interpretation to guide its applicability. The Talmud mentions at least three cases of this, but not “eye for an eye”. Contrary to Friedlander, I believe Maimonides was indeed wary of how his “orthodox brethren” would construe such a position if it was extended elsewhere, and thus hid it.

Let us look at how Maimonides views laws that the Talmud explicitly interprets as theoretical in nature. There are a few cases that are well known in the Talmud, some of which are mentioned in TB Sanhedrin 71a. One is the rebellious son⁴, the other being the condemned city.

These cases are purely theoretical, according to the Talmud. Yet Maimonides feels the need to deal with how they fit into his broader frameworks of punishments in the Torah, explaining in the Guide 3:41 that:

"As for death by order of a court of law, you will find that this sentence is only brought on in grave cases… As for a stubborn and rebellious son, he must be put to death because of what he will become."

By way of explaining why those who commit sins out of spite should get the death penalty, he explains in the same chapter why the condemned city, a city led astray by idolatry, should be completely wiped out, even though the Talmud claims it is only theoretical. He explains that when an Israelite sins in a way that indicates that he does not believe in the truth of the legislation, he is put to death:

He would, in my opinion, “revile the Lord”⁵ and ought to be put to death as an infidel and not in order to punish him for his transgression – just as the inhabitants of a “town led astray” are put to death as infidels…

Clearly, even in cases that are explicitly demarcated as “theoretical” in the Talmud, Maimonides nevertheless feels the need to explain their Biblical import. Thus, he sees a difference between the law itself, and its practical application. But why would he need to hide it, especially if there was already precedent in the Talmud for pronouncing some laws inapplicable in reality?

I believe that Maimonides did not want to say this outright because of how similar it is to Christian and Muslim doctrines that declared certain laws inapplicable or changed. Maimonides was clearly concerned with such claims in his commentary to the Mishnah when he claimed that it was a principle of faith (the 9^th) that the one may not add nor subtract laws from the Torah. Maimonides did not want to write a caveat to this principle in the Guide that basically claimed that some laws subtracted from themselves their applicability. What if a Christian polemicist caught wind of such an idea, that a premier Jewish thinker claimed that some laws were never meant to apply?

It should be noted that as opposed to these other laws like the rebellious son, however, the tradition since the giving of the Torah provides an alternative when it comes to “eye for an eye.” The reason for this difference is how they fit into frameworks that Maimonides provides, as we saw. The case of the rebellious son (for example) asks us to pronounce a boy capable of and necessarily going to commit murder, something impossible to do – and that is our only permission as the court to hand him the death penalty. In the case of the condemned city, we need to be certain that they all committed the crime of idolatry as a spite against the laws of the Torah, something impossible as well. Indeed, this follows through with why “an eye for an eye” cannot apply – Maimonides says that the whole basis of the law is to be exact in punishment, which is something impossible to mete out. But the cases happen all the time – something needs to take its place!

However, it cannot be denied that Maimonides skirts this edge elsewhere in the Guide. For example, in talking about the sacrifices, he strongly implies their limited applicability based on historical circumstances. This is true. But there is a vast difference between claiming that the reason for some laws are based on historical realities, and claiming that there is no reality in which these laws would apply – they completely defy reality. Meaning, I believe Maimonides never meant to actually limit the applicability of the commandments by providing reasons for them – whether or not sacrifices apply to us since we don’t have the proclivities toward animal sacrifices was not a concern for Maimonides. He was merely providing the causes for the commandments. But to explicitly state that a law truly never applied to begin with? That goes beyond what Maimonides was willing to say explicitly to the reader.

1 Pines page 558. The Pines translation be our translation.

2 TB BavaKamma 84a

3 I believe this is a terrible misunderstanding of Shem Tov. It seems to me he was simply expressing the difficulty he was having in understanding the words of Maimonides, but wasn’t necessarily concluding that Maimonides actually believed one thing or another. In fact, Shem Tov understands his statement that he was unwilling to say out loud was simply that “one cannot understand the Talmudic statement [that changes the literal meaning to the non-literal understanding] through instruments of reason, but rather prophecy.” A very strange theory, to be sure. An even stranger theory is suggested at http://www.haoros.com/Archive/index.asp?kovetz=876&cat=3&haoro=0 that Maimonides did not want to state how the Talmud knew it referred to money because the reason is Kabbalistic in nature, and he did not want to reveal Kabbalah to the public, just like he didn’t want to reveal the Work of the Chariot to the public. I don’t think this speaks to me or you, but at least Maimonides would be consistent in his esotericism of “higher subjects”.

4 Deuteronomy 21:18-21

5 Numbers 15:30

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I have a different answer, which I believe in much more now that I have thought about it.

Let's get back to basics.

Maimonides says in the Guide that the Torah's system of punishment is completely reciprocal. You kill someone - you get killed. You cause the removal of an eye - you lose your eye.

Now you'll question that, seeing that the Talmud states that the law of lex talionis is only monetary. Maimonides responds with two uniquely perplexing statements:

1. He is trying to explain the Torah, not the law
2. He can answer for the Talmud too, but he will only do that face-to-face

Shem Tov understands the second statement as saying one can only really understand it through prophecy, not reason. Maimonides would only teach how that is face-to-face. I'm not so sure Maimonides was such a mystic about the law, but that's Shem Tov's interpretation. He gives this answer because if Maimonides only wants to tell you something face to face, he must want to hide his true answer. That is definitely true about the Work of the Chariot, which is how to achieve prophecy. Friedlander, the early 20th century translator, think Maimonides was unsure about his answer to this, and wanted to hide his opinion from Karaites.

Be that as it may, Shem Tov goes on to question the first statement. Maimonides seems to differentiate between the Torah law framework, and Judaism's legal framework. If you claim that this is the authentic interpretation of lex talionis, how can you also claim its not peshat?

I believe that Maimonides's statement is about how the Torah decided to phrase the law, but not the law itself. The Torah phrased the law as a tit-for-tat reprisal, and therefore indicates that the framework we should view the law is a reciprocal one. Yes, its true, the law does not demand it go that far. But in deciding to write "eye for an eye" instead of "you shall surely recompensate him for damages", the Torah was telling us, says Maimonides, that we should understand its framework of punishment in this manner.

That is what he means by his first statement. There is a difference between the text's choice of wording, and how the law interprets it.

Then, one may ask, why is there a difference? Why does the Oral Torah interpretation stray from this framework of reciprocity?

The answer, Maimonides says, is one he will only explain face to face. I believe he does want to hide his opinion here, which is that the Torah's narrative and prose indicate how a perfect world would operate, and the law indicates how an imperfect world must operate.

Maimonides implies this in his discussion of the sacrifices. The sacrifices, to Maimonides, were a necessary component of the law because humans are imperfect, and for various reasons having to do with their conditioning, they require them to feel spiritual.

But the law is phrased in such a way that you can see it for what it really is - a concession to human weakness. For example, the laws of sacrifices require that it be "leretzonchem tizbichu" - when you desire to sacrifice. Implying, when sacrifices cease to be something people want to do, the Torah is indicating it is no longer necessary. Here, again, the Talmudic law interprets it that "we can make you want to do it by any means necessary". Still, built into the verse prose are these indications.

The narrative and prose indicate a perfect system of running the world. When people misbehave, they get punished right away. Sometimes there is mercy, according to the case. But human law can't work like that, and so concessions must be made. We can't chop off someone's arm because he did it to someone else, though he deserves it. The cruelty would be too much, so we must make him pay.

Indeed, in Mishneh Torah, Laws of Damages 1:3, he offers this rationale of deserving tit-for-tat punishment in an ideal sense:

The Torah's statement Leviticus 24:20: "Just as he caused an injury to his fellowman, so too, an injury should be caused to him," should not be interpreted in a literal sense. It does not mean that the person who caused the injury should actually be subjected to a similar physical punishment. Instead, the intent is that he deserves to lose a limb or to be injured in the same manner as his colleague was, and therefore he should make financial restitution to him.

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Another answer, after thinking about it some more.

It could be a different answer is present here. Maimonides did believe in a separation of peshat and the interpretation as sanctioned through the courts, since a very long time ago, which is what is called "halacha l'moshe misinai". How do we know that Maimonides held that halacha limoshe misinai means a court-sanctioned interpretation from way back? 

From this teshuva:

אפילו דבר שהוא הלכה למשה מסיני מדברי סופרים קרינן ליה ואין שם מן התורה אלא דבר שהוא מפורש בתורה כגון שעטנז וכלאים ושבת ועריות או דבר שאמרו חכמים שהוא מן התורה והן כמו שלשה ארבעה דברים בלבד... even a matter which halakha le-Moshe mi-Sinai is designated 'from the Scribes,' given that nothing is from the Torah unless it is explicit in the torah, such as shatnez, kilayim, shabboth, arayoth or a matter that the Sages have declared to be from the Torah, of which there are only three or four such cases

I think Maimonides was referring to designations of title, not of actual historicity, but it can be argued.