Governmental and Judicial Ethics in the Bible & Rabbinic Literature
CHAPTER V – JUDICIAL ETHICS OF PUNISHMENT EQUAL TO THE CRIME
Introduction: Saving Principle in Judaism’s Legal System, Divine Justice Commensurate with Crime – Measure for Measure: Punishment Equivalent to Crime, Importance of Motives, More Lenient Rabbinic View, Compensation for Damages, The Fivefold Liability for Inflicting Injury, Compensation: Civil and Punitive Effects, “Measure for Measure”: Retained But Mitigated, Summary – Genesis 9:6: Ethical Considerations, Universal Application, Judicial Emphasis in the Torah, Consequences of Bloodshed, Role Greatly Curtailed by Torah, Further Regulated by Rabbinic Rules and Courts – Cities of Refuge – Summary
Introduction
No legal system long endures unless there is incorporated within it the power to apply sanctions against those who violate the law. There is also the necessity of having a viable system of courts which will dispense justice according to the law. The law and the apparatus to maintain and apply it remain elements within a system of “mere” legalism unless there is some redeeming or saving principle behind them.
Saving Principle in Judaism’s Legal System
The saving principle in the legal system of Judaism was held strongly by the Jews to be the ultimate divine origin of both the law and the court system under which that law functioned. Therefore, compliance with the law was not merely a legal matter. To the Jews it was, in the final analysis, a religious way of life regulated by God’s will as expressed in the law. “The sages perceived the Torah not as a mélange of sources and laws of different origins, but as a single, unitary document, a corpus of laws reflective of an underlying ordered will. The Torah revealed the way things should be, just as the rabbis’ formulation and presentation of their laws tell how things should be, whether or not that is how they actually are done. The order derives from the plan and will of the Creator of the world, the foundation of all reality. The Torah was interpreted by the Talmudic rabbis to be the architect's design for reality: God looked into the Torah and created the world, just as an architect follows his prior design in raising a building.”1
As has already been pointed out in the previous chapter, incentives to obedience were offered in the form of promised blessings from God.2 Warnings against disobedience were expressed in the form of threats of calamities and destruction.3 If these warnings did not suffice, and one turned from following the law, the sanctions expressed in the law for that disobedience were to be applied in full measure. In many cases this meant “measure for measure,” in other words, a punishment equal to the crime. “This principle may seem and is often said to be extraordinarily primitive. But it is actually not in the least primitive. Whereas the beginnings of lex talionis are found before Israel, the principle was now extended by analogy until it dominated all punishment of injuries or homicides. In ordinary Ancient Oriental jurisprudence, men who belonged to the higher social categories or who were wealthy simply paid fines, otherwise escaping punishment. . . . So the lex talionis [is] . . . the principle of equal justice for all!”4
Divine Justice Commensurate with Crime
This biblical principle was sustained by the ethical demand for justice commensurate with crime.5 Although this required stern action which seemed harsh at times,6 there was no question that Scripture demanded it. In fact, this is often expressed biblically as being God’s way of personally dealing with criminality on both a national and personal level. This was acknowledged to be God’s way of retribution for evil even by those who ruled over other nations. In the post-Joshua conflict, Judah and Simeon led their forces against the Canaanites in the south. The description of their taking and punishing Adoni-bezek shows that this man believed God was dealing justly with him “measure for measure.” “Adoni-bezek fled; but they pursued him, and caught him, and cut off his thumbs and his great toes. And Adoni-bezek said, ‘Seventy kings with their thumbs and their great toes cut off used to pick up scraps under my table; as I have done, so God has requited me.’ And they brought him to Jerusalem, and he died there.”7
Also, the prophets expressed the “measure for measure” principle; e.g.. “For the day of the Lord is near upon all the nations. As you have done, it shall be done to you, your deeds shall return on your own head” (Obad. 15). And again, “I the Lord search the mind and try the heart, to give to every man according to his ways, according to the fruit of his doings” (Jer. 17:10).
“Measure for Measure”
The Jews saw the “measure for measure” principle as rooted and grounded in the very nature of God and applying to all people.8 Since it was clear that God himself acted on the principle of “As you have done, it shall be done to you,” it was not startling to the Jewish nation to find this type of punishment incorporated in the law which they were convinced was of divine origin; e.g., “When a man causes a disfigurement in his neighbor, as he has done it shall be done to him, fracture for fracture, eye for eye, tooth for tooth; as he has disfigured a man, he shall be disfigured.”9
As in other legal matters, it was also understood that they were not to stand by for God’s direct action of punishment; but, on the contrary, they felt the responsibility under law to carry out the penalty as prescribed by law.
If any harm follows, then you shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe.10
Punishment Equivalent to Crime
It is obvious from the above remarks and sources that punishment was very often a case of identical “measure for measure.”11 However, even in biblical times it was clear that an identical punishment for crime was not the only sanction which would meet the qualifications for “measure for measure.” Indeed, the law often specified that the punishment was not to be identical to the crime, but equivalent to it. For example: “When men fight with one another, and the wife of the one draws near to rescue her husband from the hand of him who is beating him, and puts out her hand and seizes him by the private parts, then you shall cut off her hand; your eye shall have no pity.”12
This type of sanction related the punishment directly to the offense. The “measure for Measure” action was not identical, but equivalent in that the member of the body which caused the offense was the object of the punishment. Although equivalent sanction was the principle of the punishment, in actual practice the Rabbis commuted the punishment to a monetary fine if it was determined the woman could have saved her husband without the use of force, otherwise, she would be exempt from the fine. “Thus the ruling: ‘Then thou shalt cut off her hand,’ means only a monetary fine . . . for were she unable to save [him] by any other means, the resort to force in her case should be considered as if exercised by an officer of the Court [in the discharge of his duties] and there would be exemption.”13
Importance of Motives
It is interesting to note that the actual performance of a crime was not always necessary for one to be guilty, and therefore subject to the “measure for measure” penalty. Motive was often the decisive factor in determining guilt. This feature highlights the ethical ingredient in this principle as it takes into account the thoughts and intents of the mind. If it could be proven that a person intended to do injury to another, as in the case of a false witness, then what he intended to do to his fellow was done to him. “. . . the judges shall inquire diligently, and if the witness is a false witness and has accused his brother falsely, then you shall do to him as he had meant to do to his brother; so you shall purge the evil from the midst of you.”14
The Rabbis of talmudic times were sensitive to the motivational element involved when determining the guilt or innocence of the accused. This ethical consideration entered into their interpretation of many biblical statements, which resulted in their applying the “measure for measure” rule to such cases; e.g., “Resh Lakish said: He who lifts his hand against his neighbour, even if he did not smite him, is called a wicked man, as it is written, ‘And he said unto the wicked man, Wherefore wouldst thou smite thy fellow?’ (Ex. 2:13) ‘Wherefore has thou smitten’ is not said, but ‘Aherefore wouldst thou smite,’ shewing that though he had not smitten him yet, he was termed a wicked man.”15
With the exception of the last example from tractate Sanhedrin, the discussion thus far about the “measure for measure” application of punishment has dealt specifically with the biblical precepts. It was noted that God himself was seen as acting often on this principle. Also, his people lived under the law that required the application of “measure for measure” either exactly or in an equivalent way.16
More Lenient Rabbinic View
During the talmudic period one can detect a shift in emphasis with reference to the application of the “measure for measure” principle toward a more lenient view, while at the same time there were some Rabbis who continued to stress the exact application as the most valid. For example: “Why not perhaps say that for eyesight taken away the Divine Law ordered eyesight to be taken away from the offender? For if you will not say this, how could capital punishment be applied in the case of a dwarf killing a giant or a giant killing a dwarf, seeing that the Torah says, ‘Ye shall have one manner of law,’ implying that the manner of law should be the same in all cases, unless you say that for a life taken away the Divine Law ordered the life of the murderer to be taken away? Why then not similarly say here too that for eyesight taken away the Divine Law ordered eyesight to be taken away from the offender?”17
However, the shift in emphasis persisted, and that shift was in the direction away from exact retribution. This reorientation was apparently brought about largely because of practical considerations. One practical consideration with which the Rabbis struggled was the difficulty, if not impossibility, of actually applying the “measure for measure” punishment in anything other than murder cases, i.e., “Whoever strikes a man so that he dies shall be put to death” (Ex. 21:12). For example: How could the “eye for eye” procedure be carried out without considerable loss of blood and other related injuries? How could exact retribution be obtained in the “tooth for tooth” injunction if the lost tooth had been a loose baby tooth and the attacker was an adult whose tooth extraction would involve pain, bruises, and loss of blood? “The School of Hezekiah taught: ‘Eye for eye, life for life,’ (Ex. 21:24) but not ‘life and eye for eye.’ Now if you assume that actual retaliation is meant, it could sometimes happen that eye and life would be taken for eye, as while the offender is being blinded, his soul might depart from him.”18
These kinds of problems were frustrating, yet the Rabbis were well aware of the teaching, “You shall have one law for the sojourner and for the native; for I am the Lord your God” (Lev. 24:22), which implied a uniform law applicable to all circumstances.
Compensation for Damages
The question became: How could this “measure for measure” rule be applied in principle without facing the hurdles involved in its literal application? The predominant answer came to be – compensation for damages. In fact, Daube advocates that “the principle of compensation, in Hebrew Law, goes back to the earliest period of legal history open to inquiry . . . and that the Rabbis only elaborate and put into words what had been a feature of the law all along the idea that punishment includes restitution, that punishment itself compensates the party wronged for his loss.”19
Thus, it can be argued that even the early practice of lex talionis had within it the embryo of positive compensation which was later articulated as monetary compensation.20
Once established, the principle of compensation for damages became generally accepted as a judicial norm in rabbincial law. For example: “Why [pay compensation]? Does the Divine Law not say ‘Eye for eve’? (Ex. 21:24) Why not take this literally to mean [putting out] the eye [of the offender]? – Let not this enter your mind, since it has been taught: You might think that where he put out his eye, the offender’s eye should be put out, or where he cut off his arm, the offender’s arm should be cut off, or again where he broke his leg, the offender’s leg should be broken. [Not so; for] it is laid down, ‘He that smiteth any man . . .’ ‘And he that smiteth a beast . . .’: (Lev. 24) just as in the case of smiting a beast compensation is to be paid, so also in the case of smiting a man compensation is to be paid. And should this [reason] not satisfy you, note that it is stated, ‘Moreover ye shall take no ransom for the life of a murderer, that is guilty of death,’ (Num. 35:31) implying that it is only for the life of a murderer that you may not take ‘satisfaction,’ whereas you may take ‘satisfaction’ [even] for the principal limbs, though these cannot be restored.”21
The Fivefold Liability for Inflicting Injury – Once the principle of compensation for damages was well established, it was then elaborately articulated and keenly refined to apply to all kinds of damage suits, both large and small. The following excerpt from tractate Baba Kamma sets out the elaborate fivefold liability incurred by one who injured his fellow man. “One who injures a fellow man becomes liable to him for five items: For depreciation, for pain, for healing, for loss of time and for degradation. How is it with ‘depreciation’? If he put out his eye, cut off his arm or broke his leg, the injured person is considered as if he were a slave being sold in the market place, and a valuation is made as to how much he was worth [previously], and how much he is worth [now]. ‘Pain’: if he burnt him either with a spit or with a nail, even though on his [finger] nail which is a place where no bruise could be made, it has to be calculated how much a man of equal standing would require to be paid to undergo such pain. ‘Healing’: if he has struck him he is under obligation to pay medical expenses. Should ulcers [meanwhile] arise on his body, if as a result of the wound, the offender would be liable, but if not as a result of the wound, he would be exempt. Where the wound was healed but reopened, healed again but reopened, he would still be under obligation to heal him. If, however, it had completely healed [but had subsequently reopened] he would no more be under obligation to heal him. ‘Loss of time’: the injured person is considered as if he were a watchman of cucumber beds (n. As even a lame or one-armed person could be employed in this capacity.) [so that the loss of such wages (n. But not of the previous employment on account of the reason which follows.) sustained by him during the period of illness may be reimbursed to him], for there has already been paid to him the value of his hand or the value of his leg [through which deprivation he would no more be able to carry on his previous employment]. ‘Degradation’: all to be estimated in accordance with the status of the offender and the offended.”22
Compensation: Civil and Punitive Effects – At this point in the discussion it should be noted that the ethical rationale motivating the Rabbis in the shift from exact retribution to compensation for damages was the desire to apply a practical justice in the spirit, if not the letter, of the “measure for measure” principle. This approach made it possible for them to circumvent the difficulties of the “one standard” while retaining it in essence. “The equitable application of the ‘one standard’ or ‘one manner of law’ to the stranger as well as the Israelite was based, according to Rabbinic interpretation, upon the phrase ‘The God of all of you,’ (Lev. 24:22), which meant the same to both the Israelite and the stranger.”23
It was not their intention to apply a “civil” solution to a “criminal” problem, but rather to establish a workable system which would assure justice in all matters. It is not surprising, then, to note that the compensation for damages was designed to have both a civil and a punitive effect. This is obvious from the fact that one found guilty of injury to another could not have a sentence of payment for damages and also flogging imposed upon him. “. . . when one person injures another person, in which case there are the payment of money and the punishment of lashes, he pays money and does not receive the lashes? And if you will say that this is only when they did not warn him, but when they warned him, he receives the lashes and does not pay – did not R. Ammi say in the name of R. Johanan that, if one person struck another person a blow, for which no peruţah (n. A small coin.) can be claimed as damages, (n. Lit., ‘in which there is not the value of a peruţah.’) he receives the lashes? How shall we imagine this case? If they did not warn him, why does he receive the lashes? Hence it is clear that they warned him, and the reason [why he receives the lashes and does not pay] is because the damages do not amount to a peruţah, but if they amount to a peruţah he pays the money but does not receive the lashes!”24
Since flogging could not be administered in an injury suit where compensatory damages were paid, this meant that payment of damages had the practical effect of being punitive in such cases. One could not be punished both “civilly” and “criminally” for the same offense; and since compensation had a civil element (payment of damages) and a criminal element (punitive) within it, both flogging and payment of compensation could not be required for any one offense. “For it is said in scripture, and yet no harm follow he shall be surely fined etc. Is, however, the deduction (n. That one who suffers the death penalty is exempt from a monetary fine.) made from this text? (Ex. 21:22, cited in our Mishnah.) Is it not in fact made from the following text: ‘According to the measure of his crime,’ (Deut. 25:2). [which implies] (n. Since the text makes use of the sing.) you make him liable to a penalty (n. Flogging, spoken of in the text cited.) for one crime, but you cannot make him liable [at the same time] for two crimes? (n. By the imposition of two forms of punishment.) – One [text deals] with [the penalties of] death and money and the other with [the penalties of] flogging and money. And [both texts were] needed.”25
So, as time went on, the practice of direct “measure for measure” gave way more and more to equivalent and compensatory sanctions by the courts. This was done without losing sight of the fact that punishment, in principle, should always be measured by the gravity of the crime. Thus, each convicted person was to receive punishment “according to his guilt.” “If there is a dispute between men, and they come into court, and the judges decide between them, acquitting the innocent and condemning the guilty, then if the guilty man deserves to be beaten, the judge shall cause him to lie down and be beaten in his presence with a number of stripes in proportion to his offense.”26
“Measure for Measure”: Retained but Mitigated
While the application of the direct “measure for measure” principle was greatly mitigated by a wider use of the equivalent sanctions mentioned earlier and the judicious concern for payment of compensation for damages, the Rabbis continued to recognize this principle and apply it through the courts. In addition, it was often stressed in the Talmud as the expression of ultimate justice, or the effect of a cause from which one simply could not escape.27 “In the measure with which a man measures it is meted out to him” is interpreted in the Talmud as a cause-and-effect relationship having its explanation in the divine order of things. “In the measure with which a man measures it is meted out to him. She adorned herself for a transgression; the Holy One, blessed be He, made her repulsive. She exposed herself for a transgression; the Holy One, blessed be He, held her up for exposure. She began the transgression with the thigh and afterwards with the womb; therefore she is punished first in the thigh and afterwards in the womb, (Num. 5:21 f.) nor does all the body escape.”28
Summary
Some salient points may be emphasized in summary. It has been shown that the judicial ethics of punishment equal to the crime had its grounding in the very nature of God. Therefore, the Torah was explicit in its laws on this principle. However, it was also pointed out that the application of “measure for measure” did not always require exact retribution. In fact, the Torah spoke specifically of equivalent sanctions for the violation of many laws. Further inquiry into the Talmud showed that the Rabbis were, with but few exceptions, seeking to retain the essence of the law while ameliorating its application.29 They did this by placing a greater emphasis on equivalent and compensatory sanctions than on the direct “measure for measure.” This humane concern on the part of the Sages was expressed by a growing corpus of legal literature which provided supervision by the legal authorities through the court system. Thus, the judicial ethics undergirding the “measure for measure” laws were on a high level, and continued to be developed and refined from biblical through talmudic times.
Genesis 9:6
“Whoever sheds the blood of man, by man shall his blood be shed; for God made man in his own image.”30 Nowhere in the Bible is the requirement of the death penalty more forcefully stated. Nowhere in the Bible is the principle of “measure for measure” more clearly enunciated. Nowhere in the Bible is the reason for the death penalty and “measure for measure” more vividly defined. Therefore, after having considered divine punishment, the death penalty, and the “measure for measure” principle, it is logical and profitable to analyze the broad ramifications of Genesis 9:6 for ethical and judicial principles with respect to this kind of punishment.31
Ethical Considerations
The ethical considerations for deterrent to murder center around the biblical description of the relationship of God to man. Man is made in the image of God (Gen. 1:27). The life with which man was endowed by God (Gen 2:7) was identified with man's blood. “For the life of every creature is the blood of it; therefore I have said to the people of Israel, You shall not eat the blood of any creature, for the life of every creature is its blood; whoever eats it shall be cut off.”32
Therefore, the phrase “sheds the blood of man” is equivalent to “takes the life of man.” And since life is identified as the gift of God, the shedding of man's blood, or in other words, the taking of man’s life, is not only considered an irreparable injustice against man, but an outrage against God himself.33
Universal Application
It is not surprising, then, to note that the biblical declaration of retribution against the murderer is of universal application. The death penalty for murder was not enunciated merely because murder is a horrible social crime, although no doubt that would have been sufficient reason, but because murder is seen as striking at that very likeness of God with which man is stamped. Thus, the pre-Mosaic pronouncement of Genesis 9:6 applied to all men. The outraged reaction of God against the first murder was a very personal reaction; i.e., God said: “What have you done? The voice of your brother’s blood is crying to me from the ground. And now you are cursed from the ground, which has opened its mouth to receive your brother's blood from your hand.”34
The anger of God against the shedder of blood is pictured as a timeless, universal, personal response on his part. Just as the biblical narrative describes his outrage at murder before the flood, so after the flood the account of his personal announcement to all men is given, viz., “Surely I will require your lifeblood; from every beast I will require it. And from every man, from every man’s brother I will require the life of man” (Gen. 9:5, NASB). Milgrom presents the thesis that even the biblical legislation concerning dietary practices “rests on foundations that are essentially ethical, and ethical in the highest sense, [and] that the dietary laws are anchored in an ethical foundation was not unknown to the rabbis of the Talmudic age. . . . The fathers of Judaism felt so keenly about the ethical primacy of the dietary system that they enjoined one of its tenets, the blood prohibition, upon all mankind. . . . The Hebrew Bible, according to its own testimony, was intended for Israel alone – even the Ten Commandments. Only one biblical statute, the blood prohibition, is commanded to all men.”35
Judicial Emphasis in the Torah
It is, therefore, to be expected that the Torah would place judicial emphasis upon matters related to the shedding of blood. Neither is it surprising that the people took these laws seriously. For example, in view of the expiatory nature of blood in the sacrificial system under which they lived, the Israelites could readily accept the divine imperative for the man’s blood to be shed in expiation who had himself polluted the land by shedding his fellow man's blood. “You shall not thus pollute the land in which you live; for blood pollutes the land, and no expiation can be made for the land, for the blood that is shed in it, except by the blood of him who shed it.”36
Basically, the judicial sanctions against the one guilty of bloodshed were ultimately viewed as expressions of the divine wrath, and therefore were incurred as consequences for sin. This punishment for the sin of bloodshed was understood to be of high priority in the eyes of God. “For behold, the Lord is coming forth out of his place to punish the inhabitants of the earth for their iniquity, and the earth will disclose the blood shed upon her, and will no more cover her slain.”37
Consequences of Bloodshed
Therefore, the intricate system of various punishments for different kinds of bloodshed was very much a part of the life of Israel in biblical times. If someone took another person’s life deliberately, the slayer was to be put to death (Gen. 9:6). If man failed to carry out his responsibilities, God gave his assurance that he would personally require the lifeblood of the guilty (Gen. 9:5). The assurance that the murderer would eventually be punished, if not by man under God’s law then by divine wrath, is seen in the type of language used to describe God’s action where murder was concerned. Examples are: “And you shall strike down the house of Ahab your master, that I may avenge on Jezebel the blood of my servants the prophets, and the blood of all the servants of the Lord.”38 “And the Lord said to him, ‘Call his name Jezreel; for yet a little while, and I will punish the house of Jehu for the blood of Jezreel, and I will put an end to the kingdom of the house of Israel.’”39 “Through the crime of bloodshed the Temple was destroyed and the Shechinah departed from Israel, as it is written, ‘So ye shall not pollute the land wherein ye are; for blood, it polluteth the land. . . . And thou shalt not defile the land which ye inhabit, in the midst of which I dwell’: (Num. 35:33-34) hence, if ye do defile it, ye will not inhabit it and I will not dwell in its midst. (n. It may be remarked that the destruction of the Temple is regarded here as synonymous with exile from the country.)”40
So, the shedding of blood was not only viewed in the Bible as the cause for God’s bringing down of dynasties; it was also viewed by the later Rabbis as the reason for the destruction of the Temple.
Bloodshed was also seen by the Sages as a partial reason for exile. “Exile comes to the world for idolatry, for incest and for bloodshed, and for [transgressing the commandment of] the [year of the] release of the land.”41
The homeowner was warned against becoming the cause of death on his premises at the risk of incurring guilt. “When you build a new house, you shall make a parapet for your roof, that you may not bring the guilt of blood upon your house, if any one fall from it” (Deut. 22:8).42 Examples are numerous in the Bible as to what constituted a potential or actual demand under law that one pay the price of his own blood for his deed.
Gō'ēl Hadām
Another significant feature in Jewish law was the provision for the blood-avenger. In view of what has been said earlier in this section in connection with the ethical background and the expiatory nature of sacrificial blood for the sins of the people and of man’s blood for the blood he has shed, it is obviously no mere coincidence that the Hebrew term for “blood-avenger” (gō'ēl hadām) is applied with equal validity to one who acted as redeemer,43 e.g., “The blood avenger himself shall put the murderer to death; he shall put him to death when he meets him” (NASB). “And now it is true that I am a near kinsman, yet there is a kinsman nearer than I.”44
Early Activity of the Gō'ēl Hadām – Theoretically, there was a sense in which the blood-avenger was committing a “redemptive” act rather than a “vengeful” act when he put the murderer to death. The murderer had polluted the land and no expiation could be made for the land on account of the blood which had been shed on it except the blood of the murderer (Num. 35:33). Therefore, the act of the avenger was, from the biblical point of view, primarily expiatory in essence, while admittedly often vindictive in practice.
It is a fact that in early times the act of outright simple vengeance in taking life as a satisfaction for a grievance was common practice. In describing Bedouin life among the early Arab clans, Hitti states: “Blood, according to the primitive law of the desert, calls for blood; no chastisement is recognized other than that of vengeance. The nearest of kin is supposed to assume primary responsibility. A blood feud may last forty years. . . . In all the ayyam al-'Arab, those intertribal battles of pre-Islamic days, the chronicles emphasize the blood feud motif.”45
An early example of the “blood feud motif” in the Bible is seen in Lamech’s pronouncement. “Lamech said to his wives: ‘Adah and Zillah, hear my voice; you wives of Lamech, hearken to what I say: I have slain a man for wounding me, a young man for striking me. If Cain is avenged sevenfold, truly Lamech seventy-sevenfold.’”46
Role Greatly Curtailed by Torah – However, by the law Of the Torah the role of the blood- avenger was sharply curtailed, and as a result of rabbinic elaboration and refinement of the law, further restrictions were imposed. For example, the avenger was not free to seek vengeance unless the murder was premeditated. “And if he stabbed him from hatred, or hurled at him, lying in wait, so that he died, or in enmity struck him down with his hand, so that he died, then he who struck the blow shall be put to death; he is a murderer; the avenger of blood shall put the murderer to death, when he meets him.”47
That the murder was indeed committed with malice could be determined by the fact that the murderer carried out his deed with a murder weapon. “But if he struck him down with an instrument of iron, so that he died, he is a murderer; the murderer shall be put to death. And if he struck him down with a stone in the hand, by which a man may die, and he died, he is a murderer; the murderer shall be put to death. Or if he struck him down with a weapon of wood in the hand, by which a man may die, and he died, he is a murderer; the murderer shall be put to death.”48
Further Regulated by Rabbinic Rules and Courts – As the Rabbis interpreted the Torah and expanded on its principles with reference to the role of the blood-avenger, they eventually brought the courts to a place of greater jurisdiction in certain cases.49 For example, if the murder victim had no near relative who could serve as blood-avenger, the court appointed one. “And what is the reference to the ‘avenger of blood’? – It has been taught: ‘The avenger of blood shall himself put the murderer to death’; (Num. 35:19) it is [primarily] the duty of the avenger of blood [to slay the murderer]. And whence do we know that, if he [the murdered man] has no avenger of blood, (n. A near kinsman, upon whom devolved the duty of hunting down a murderer to death.) the Beth Din must appoint one? (n. l.e., the Court is always responsible for prosecuting the murderer, whether there is a relative or not.) – From the verse, ‘When he meeteth him,’ i.e., in all cases. (n. Thus this verse too shows that the provisions of an avenging kinsman are not limited to the precise statement of the Bible.)”50
This example is important. It shows that the role of the blood-avenger was not altogether an act of vengeance, as was pointed out earlier, but that under law, the court-appointed avenger was actually serving as a dispassionate executioner of a criminal for the committing of a capital offense. This is again a reminder that the ethics of this practice under Jewish law were higher than the name “blood-avenger” may superficially suggest. In fact, the Aramaic rendering of Targum Onkelos on Genesis 9:6 shows that the requirement of witnesses and due judicial process in effect eliminated the action of the blood-avenger independent of the courts, i.e., “He that sheds the blood of man before witness; by the word of the judges shall his blood be shed”51
Cities of Refuge
Another feature of the Torah which showed a compassionate concern for human life was the provision of cities of refuge to which one could flee if he had accidentally slain someone. “These six cities shall be for refuge for the people of Israel, and for the stranger and for the sojourner among them, that any one who kills any person without intent may flee there” (Num. 35:15). Thus, under law, a way was provided for the protection of one who had become a manslayer but who was not guilty of premeditated murder. Interestingly enough, however, von Rad says, “The institution of the right of asylum serves above all to limit the rights of blood-revenge, which in itself has absolute authority, that is, whenever one of a family is killed the next of kin know they will be called upon to exact vengeance. . . . blood-revenge is not by any means a custom which the lawgiver wishes to abolish. . . . So far as we can see, kingship and the power of the State have no effective influence on legal practice, certainly in the countryside. Hence, in cases of murder in Israel, blood-revenge remained a quite legitimate institution in itself . . .”52
Thus, the legal arrangements with respect to this entire subject not only protected the innocent; they also prevented the blood-avenger from acting rashly and prematurely by shedding innocent blood. A practical illustration of this arrangement under law is spelled out in detail in the Torah as follows: “This is the provision for the manslayer, who by fleeing there may save his life. If any one kills his neighbor unintentionally without having been at enmity with him in time past-as when a man goes into the forest with his neighbor to cut wood, and his hand swings the axe to cut down a tree, and the head slips from the handle and strikes his neighbor so that he dies-he may flee to one of these cities and save his life; lest the avenger of blood in hot anger pursue the manslayer and overtake him, because the way is long, and wound him mortally, though the man did not deserve to die, since he was not at enmity with this neighbor in time past.”53
Another curtailment of the blood-avenger’s scope of action had to do with cases where there was doubt as to whether the one who had shed blood was guilty of involuntary manslaughter or murder. In such cases the manslayer had the assurance of a public trial. “. . . then the congregation shall judge between the slayer and the blood avenger according to these ordinances” (Num. 35:24, NASB). Under this legal procedure the manslayer was given every consideration possible. First, the cities of refuge were a true haven for him if he had accidentally killed someone.54 The “hot anger” of the blood-avenger could not touch him there. Second, if there was doubt as to whether he had taken life with murderous intent, the blood-avenger was held at bay while he received a public trial.
Third, he was assured he would not be turned over to the avenger unless he was proven guilty of murder by the due process of law. “The cities shall be for you a refuge from the avenger, that the manslayer may not die until he stands before the congregation for judgment” (Num. 35:12).
Summary
The judicial ethics of punishment equal to the crime committed have been analyzed in this section. The “measure for measure” principle was rooted in the nature of God, who often operates on this principle in a personal, direct manner. Man’s use of this principle as a judicial procedure was regulated by the Torah. In the Torah there was legislation to guide the people with respect to exact retribution and equivalent sanctions for crimes committed. The Talmud indicates that the Rabbis were attempting to mitigate the harshness of this principle when they developed a system of monetary compensation for damages resulting from law violations.
The evidence from the sources shows that ethical considerations for deterrence of murder center around the relationship of God to man. God’s wrath is stirred when man sheds man’s blood because man is made in God’s image and man’s life is “in the blood.” Therefore, God often acted directly against the offender. He also supplied in the Torah the legislation by which man was regulated in his desire for revenge against the shedder of blood. The early pre-Mosaic practice of personal revenge for injustice suffered was channeled by the Torah into a judicial framework whereby the blood-avenger was a redeemer as well as an avenger. Also, protection was provided in the cities of refuge for the manslayer who had taken life inadvertently. The Sages, in their conviction that actions in the matter of “blood for blood” should be governed by law and not motivated by personal vengeance, brought these matters more fully under the jurisdiction of the courts.
Footnotes:
1 Jacob Neusner, Invitation to the Talmud (New York: Harper & Row, 1973), p. 226.
2 Lev. 26:3-13.
3 Lev. 26:14-39.
4 W.F. Albright, History, Archaeology, and Christian Humanism (New York: McGraw-Hill, 1964), p. 74. Cf. also, pp. 98-99.
5 Ibid., p. 99; “In the Hebrew Bible we never find use of the common Babylonian and Hittite assumption that a man can escape a severe penalty if he is rich or well-born, a penalty which would fall without mitigation on the poor man or the slave. Equal justice for all is at the heart of Mosaic jurisprudence.”
6 W.F. Albright, The Biblical Period from Abraham to Ezra (New York: Harper Torchbooks, 1963), pp. 18-19. It is pointed out that Hebrew law, such as that found in the Book of the Covenant (Ex. 21-23), was “much more humane than the draconic Middle Assyrian laws . . .”
7 Judg. 1:6-7.
8 Haim H. Cohn, Jewish Law in Ancient and Modern Israel (New York: KTAV, 1971), p. 74: “. . . by punishing the offender according to the measure of his offence, God’s fury is exhausted and His anger ‘accomplished’ (Ezekiel 7, 8). The vengeance of the Lord can be satisfied by doing unto the offender exactly as he himself has done (Jeremiah 50, 51). Thus, measure for measure can be said to be God’s own way of doing justice . . .”
9 Lev. 24:19-20. J.K. Miklisanski, “The Law of Retaliation and the Pentateuch,” Journal of Biblical Literature 66 (1947): 296, 300. The author faces squarely the impact of pentateuchal texts usually cited as examples of the lex talionis legal genre, e.g., Ex. 21:22-25; Lev. 24:19-20; Deut. 19:21. However, he insists that “the lex talionis was obsolete in Biblical times,” and argues that “the only unquestionable law of retaliation in the Mosaic code refers to intentional murder for which there is no other retribution but life-for-life in the literal sense.”
10 Ex. 21:23-25. W.F. Albright, Yahweh and the Gods of Canaan (Garden City, N.Y.: Doubleday Anchor Books, 1969). With reference to the lex talionis formula of Ex. 21:23-25, Albright states, “In the Hebrew formula, we have what may be the earliest enunciation of a generalized legal principle known anywhere in the world. Though it has not yet attained the level of a generalized abstract proposition, it reaches its purpose by listing several related concrete propositions to illustrate the scope of the generalized principle. Since the Old Testament shows little trace of protological thinking after the thirteenth-twelfth centuries B.C. but is throughout a monument of empirical logic, we need not have any hesitation about tracing the legal generalization back to the beginnings of the Mosaic revolution – either to Moses himself or to a ‘school’ of interpreters who endeavoured to harmonize the ancient case law with the body of apodictic law which had been developing since the time of Moses” (pp. 174-175).
11 W.F. Albright, New Horizons in Biblical Research (London: Oxford University Press, 1966), p. 29: “The Lex Talionis (Exodus 21:23-25) ‘life for life, eye for eye,’ is the oldest known explicit statement of a fundamental legal principle, equal justice for all. Today it may sound harsh, but it was a tremendous improvement over earlier vendetta law or differential penalties depending on the social status of aggressor and victim.”
12 Deut. 25:11-12.
13 B.K. 28a.
14 Deut. 19:18-19.
15 San. 58b.
16 Theophile J. Meek, Hebrew Origins (New York: Harper & Brothers, 1936), p. 68. This author stresses the points of similarity between the Hammurabi code and Hebrew law codes, including the “measure for measure” principle, and says, “Both are the concrete expression of the same general principles of morality and justice, and a spirit of humaneness pervades both codes.”
17 B.K. 83b-84a.
18 B.K. 84a. However, again it should be noted that the shift away from the teaching of the literal application of the lex talionis was not unanimous among the Rabbis; e.g., “R. Eliezer said, ‘Eye for eye literally refers to the eye’ [of the offender],” loc. cit. R. Eliezer’s ultra conservative view reflects the actual practice of an earlier age.
19 David Daube, Studies in Biblical Law (New York: KTAV, 1969), pp. 102-153.
20 The replacement of the death penalty by ransom is, in specific cases, provided for in the Mosaic code; cf. Ex. 21:29ff.
21 B.K. 83b.
22 M. B.K. VIII, 1.
23 A. Cohen, [ed.], The Soncino Chumash: The Five Books of Moses with Haphtaroth (Hindhead, Surrey: Soncino Press, 1947), p. 760.
24 Ket. 32b. [trans. Samuel Daiches].
25 Ket. 37a. [trans. Israel W. Slotki].
26 Deut. 25:1-2.
27 Cf. Matt. 7:1-2 for N.T. parallel.
28 M. Sot. I, 7.
29 Jacob Neusner, led.], Understanding Rabbinic Judaism from Talmudic to Modern Times (New York: KTAV, 1974), p. 10: “The rabbi functioned in the Jewish community as judge and administrator. But he lived in a society in some ways quite separate from that of Jewry as a whole. The rabbinical academy was, first, a law school. Some of its graduates served as judges and administrators of the law. . . . one of its functions concerned those parts of the Torah to be applied in everyday life through the judiciary.”
30 Gen. 9:6. Gerhard von Rad, Genesis: A Commentary, [trans. John H. Marks], (Philadelphia: Westminster Press, 1956), p. 128: “. . . man is God’s possession and was created in God’s image. The saying in v. 6 is extremely ancient and forceful, masterfully pregnant both in form (exact correspondence of the words in both halves of the statement; talion!) as well as in content. . . . It could be that it once legally prescribed and limited the exercise of blood vengeance: In the event of a murder the blood vengeance could not be reckless (cf. ch. 4:23); only the murderer (he, and no substitute!) atones with death.”
31 Cf. Targum Onkelos on Gen. 9:6, below, pp. 164-165.
32 Lev. 17:14.
33 D. J. McCarthy, “The Symbolism of Blood and Sacrifice,” Journal of Biblical Literature 88 (1969): 174, 176: “. . . the explicit claim that blood is life and so divine remains isolated to Israel. . . . the evidence from the ancient Semitic and Aegean areas does not show a general belief outside Israel in blood as a divine element. . . . As far as we know, the reservation of blood to God because it was life and so divine is specifically Israelite.”
34 Gen. 4:10-11.
35 J. Milgrom, “The Biblical Diet Laws as an Ethical System,” Interpretation 17 (1963): 291, 294, 300. But cf. the numerous rabbinic legends indicating that the Torah – and certainly the Decalogue – was meant for all mankind, though other nations rejected it when God offered it to them; e.g., Sifre on Deut. 33:2. The divine utterance was heard in seventy languages, according to Shab. 88b [trans. H. Freedman]: “Every single word that went forth from the Omnipotent was split up into seventy languages. (n. The traditional number of the languages of man, i.e., the Torah was given to all humanity.)”
36 Num. 35:33. M. Greenberg, “Bloodguilt,” Interpreter’s Dictionary of the Bible, vol. l, p. 449: “In Israel . . . bloodguilt was defiling, but it was incurred only through slaying a man who did not deserve to die (dam naki, ‘innocent blood’; Deut. 19:10; Jer. 26:15; Jonah 1:14). Killing in self-defense and the judicial execution of criminals are explicitly exempted (Ex. 22:2 – H[eb.] 22:1; Lev. 20:9; etc.).”
37 Is. 26:21.
38 II Kings 9:7.
39 Hos. 1:4. John Mauchline, “Hosea,” Interpreter’s Bible, vol. 6, pp. 569-570. With reference to the name “Jezreel,” Mauchline holds, “The view of Rashi that the name refers to the exile of Israel and to their being sown or scattered is farfetched.” He goes on to say that “The name Jezreel, as borne by Hosea’s child, was a reminder of the bloodshed for which punishment was about to come . . .” (ibid.).
40 Shab. 33a [trans. H. Freedman]. Also, cf. Yoma 9b, where it is stated that one of the reasons for the destruction of the first Temple was bloodshed, as follows: “Why was the first Sanctuary destroyed? Because of three [evil] things which prevailed there: idolatry, immorality, bloodshed.”
41 M. Ab. V, 9.
42 S.R. Driver, Deuteronomy, International Critical Commentary, 3d ed. (1902), p. 251: “This law is peculiar to Dt., but a provision prompted by the same general motive is found in Ex. 21:33 ff. (a pit not to be left open, so that an ox or an ass may fall into it).”
43 The verb means “to redeem,” and what one “redeemed” depends on circumstances. It may be a Kinsman’s house or field – or his blood if he is murdered. The only common factor is the blood relationship, i.e., kinship.
44 Num. 35:19; Ruth 3:12.
45 Philip K. Hitti, History of the Arabs (London: Macmillan, 1940), p. 26. Also cf. Bernard Lewis, The Arabs in History (Tiptree, Essex: Anchor Press, 1950), p. 30. “The chief social limitation of the prevailing anarchy was the custom of blood-vengeance, imposing on the kin of a murdered man the duty of exacting vengeance from the murderer or one of his fellow tribesmen.”
46 Gen. 4:23-24.
47 Num. 35:20-21.
48 Num. 35:16-18.
49 J. Blidstein, “Capital Punishment – The Classic Jewish Discussion,” Judaism 14, no. 2 (Spring 1965): 169, nn. 4 and 5.
50 San. 45b [trans. Jacob Shachter].
51 A.M. Silbermann, [ed.], Pentateuch with Targum Onketos and Rashi’s Commentary: Genesis, [trans. and annotated by M. Rosenbaum, A.M. Silbermann, A. Blashki, and L. Joseph], (London: Shapiro, Vallentine, 1929), pp. 37-38. Also cf. above, introductory remarks on Gen. 9:6.
52 Gerhard von Rad, Deuteronomy: A Commentary, [trans. Dorothea Barton], (Philadelphia: Westminster Press, 1966), pp. 127-128.
53 Deut. 19:4-6.
54 Emanuel Rackman, “Talmudic Insights on Human Rights,” Judaism 1, no. 2 (April 1952): 160: “Rabbi Isaac explained the significance of the verse, ‘and that fleeing unto one of these cities he might live’ (Deut. 4:42). This implies, ‘provide the means for a livelihood’ (B. Makkot 10a). If the refugee was a scholar, he was even to be provided with a college for the continuous practice of his calling (J. Makkot 6).”
