19.3. Laws of Murder and Kidnapping (21:12-36)

(12) He who fatally strikes a man shall be put to death.

(13) If he did not do it by design, but it came about by an act of God, I will assign you a place to which he can flee.

(14) When a man schemes against another and kills him treacherously, you shall take him from My very altar to be put to death.

(15) He who strikes his father or his mother shall be put to death.

(16) He who kidnaps a man — whether he has sold him or is still holding him — shall be put to death.

(17) He who insults his father or his mother shall be put to death.

(18) When men quarrel and one strikes the other with stone or fist, and he does not die but has to take to his bed —

(19) if he then gets up and walks outdoors upon his staff, the assailant shall go unpunished, except that he must pay for his idleness and his cure.

(20) When a man strikes his slave, male or female, with a rod, and he dies there and then, he must be avenged.

(21) But if he survives a day or two, he is not to be avenged, since he is the other’s property.

(22) When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him, the payment to be based on reckoning.

(23) But if other damage ensues, the penalty shall be life for life,

(24) eye for eye, tooth for tooth, hand for hand, foot for foot,

(25) burn for burn, wound for wound, bruise for bruise.

(26) When a man strikes the eye of his slave, male or female, and destroys it, he shall let him go free on account of his eye.

(27) If he knocks out the tooth of his slave, male or female, he shall let him go free on account of his tooth.

(28) When an ox gores a man or a woman to death, the ox shall be stoned and its flesh shall not be eaten, but the owner of the ox is not to be punished.

(29) If, however, that ox has been in the habit of goring, and its owner, though warned, has failed to guard it, and it kills a man or a woman — the ox shall be stoned and its owner, too, shall be put to death.

(30) If ransom is laid upon him, he must pay whatever is laid upon him to redeem his life.

(31) So, too, if it gores a minor, male or female, [the owner] shall be dealt with according to the same rule.

(32) But if the ox gores a slave, male or female, he shall pay thirty shekels of silver to the master, and the ox shall be stoned.

(33) When a man opens a pit, or digs a pit and does not cover it, and an ox or an ass falls into it,

(34) the one responsible for the pit must make restitution; he shall pay the price to the owner, but shall keep the dead animal.

(35) When a man’s ox injures his neighbor’s ox and it dies, they shall sell the live ox and divide its price; they shall also divide the dead animal.

(36) If, however, it is known that the ox was in the habit of goring, and its owner has failed to guard it, he must restore ox for ox, but shall keep the dead animal.

(12) He who fatally strikes a man shall be put to death: The overarching principle of the Torah’s criminal law is that the punishment exacted is not determined by a need to avenge the offense, but by how the situation can best be rectified. If, for example, murder or stealing would go unpunished, then society would soon disintegrate, and that is why the punishment exists. But there is no punishment in the Torah whose objective is simply to wreak vengeance on the criminal.

(13) If he did not do it by design, but it came about by an act of God, I will assign you a place to which he can flee: Negligent homicide is redressed by exiling the killer to a City of Refuge. Here only the very general principle is presented. The details of this commandment are elaborated in Numbers (35:9 ff.) and Deuteronomy (19:1 ff.).

But it came about by an act of God: The killing happened inadvertently, and was thus decided in Heaven. In such a situation one cannot (indeed, must not) try to find justice or justification.

(14) When a man schemes against another and kills him treacherously, you shall take him from My very altar to be put to death: After describing the shelter provided for an unwitting killer, the Torah emphasizes that, conversely, there must be no shelter for a murderer under any circumstances.

In the biblical era, it was accepted in certain cultures that a criminal could escape punishment by entering the sanctuary and taking hold of the altar (see 1 Kings, 2:28). The Torah here emphatically and categorically rejects any such notion.

(15) He who strikes his father or his mother shall be put to death: This means a person who deliberately strikes, and wounds, either of his parents.

(16) He who kidnaps a man — whether he has sold him or is still holding him — shall be put to death: Kidnapping is considered a form of “social murder.” That is, to be deprived of one’s personal freedom is equivalent to being deprived of life itself.

(17) He who insults his father or his mother shall be put to death: Hebrew mekallel, the word used in this verse, means “one who curses.” To merely “insult” a parent is of course a grave sin. But it becomes a capital offense, punishable by death in an earthly court, only when the child has uttered an actual curse.

Like the death penalty in Judaism in general, the death sentences prescribed for the various offenses in this portion are in practice virtually impossible to apply. This is because of the extraordinarily stringent judicial conditions that would have to be met (in the cross-examination of witnesses, for example, and in ascertaining that the perpetrator had full knowledge and understanding, in advance, of the nature of his offense and of the punishment that would ensue).

The Torah’s intent in making them capital offenses is essentially to emphasize the gravity of the crimes.

(18-19) When men quarrel and one strikes the other with stone or fist, and he does not die but has to take to his bed — if he then gets up and walks outdoors upon his staff, the assailant shall go unpunished, except that he must pay for his idleness and his cure: Compensation for personal injury is payable on five points: For the depreciation of the injured in the labor market, for the physical pain inflicted, for medical expenses incurred, for lost wages, and for embarrassment suffered.

(19) And his cure: The Torah considers the practice of medicine, and the benefits it confers, a boon to humanity. The idea that “going to a doctor demonstrates a lack of faith in God” is flatly rejected. While it is true that all sickness and disease come from God, it is no less true that the physician’s ability to heal, his right to heal, and his obligation to heal are all likewise given to him by God.

(20) When a man strikes his slave, male or female, with a rod, and he dies there and then, he must be avenged: One who murders his slave incurs the death penalty for that crime, just as he would for murdering any other person.

The discussion here concerns non-Jewish slaves, whose status in Jewish law generally paralleled that of slaves throughout the ancient world in most respects. But with regard to physical safety, the Torah protected the rights of such slaves to a far greater degree than did other legal systems of those times.

(21) But if he survives a day or two, he is not to be avenged, since he is the other’s property: In this case, the master does not incur the death penalty.

Since he is the other’s property: Because the death of a slave results in a significant loss to the master as well, it is presumed – in the absence of evidence to the contrary – that he had not actually intended to kill his slave.

In deciding such issues, however, we consider also the manner and extent of the blow. If it was inflicted with deadly force, or by means of a deadly weapon, then the master will be held liable for murder even if the slave managed to live another day or two in the wake of the injury. But if, conversely, a relatively minor blow turned out post facto to be fatal, the death of the slave, however lamentable, would be deemed only a negligent homicide.

(22) When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined: “No other damage ensues” means that the woman herself is not fatally injured.

(23) But if other damage ensues, the penalty shall be life for life: If the woman dies, her death is deemed a murder, and the killer pays with his life. The argument that he had no actual intention of killing her is invalid in this case, because one must always exercise especial care in the presence of a pregnant woman.

(24) Eye for eye, tooth for tooth: It is today accepted in all civilized societies that at the level of practical law, this phrase is not to be taken literally, and only means monetary compensation.

We read earlier: “When men quarrel and one strikes the other … and … has to take to his bed … he must pay” (21:18-19). In that case it is clear beyond all doubt that monetary compensation is meant. Thus, at the practical level “an eye for eye” too cannot be interpreted otherwise.

It is no accident, however, that the language of the Torah here is formulated in terms of retributive justice rather than simple monetary compensation. The purpose of the Written Torah cannot be reduced to merely establishing halachah, the practical application of the law.

The aim of the Written Torah is to convey the very essence of real justice. “An eye for an eye” is not human justice, but it is Divine justice. Although we must not in real life exact that level of justice for the loss of an eye, it is crucial to understand that by the law of the Supreme (Heavenly) Court, “an eye for an eye” is in fact the penalty that should be imposed. It is precisely this understanding that the Written Torah wishes to convey.

When we protest too much that “an eye for eye” means compensation and nothing more, one of the Torah’s critical lessons is lost on us. “An eye for an eye,” while certainly not intended as a principle of practical halachah, is an essential principle for understanding the ways of the universe.

(25) Burn for burn, wound for wound, bruise for bruise: The point here is that the same principle applies also to damage that is only temporary.

(26-27) When a man strikes the eye of his slave, male or female, and destroys it, he shall let him go free on account of his eye. If he knocks out the tooth of his slave, male or female, he shall let him go free on account of his tooth: This applies only to non-Jewish slaves purchased on the “international market,” who were under the jurisdiction of the general laws of slavery of those times (i.e., he is a slave for life).

The Torah’s innovation here is the granting of freedom to a slave who has been irreparably maimed or mutilated at the hands of his master. Because slaves were very expensive and highly valued on the farm, this law protected slaves from the aggressive or violent tendencies of their owners.

(28) When an ox gores a man or a woman to death, the ox shall be stoned and its flesh shall not be eaten, but the owner of the ox is not to be punished: When a person’s possessions or property cause damage, he is held responsible only for situations that he could have reasonably expected, and should have foreseen. Since it is not the usual nature of an ox to inflict deliberate, malicious injury, in the event that it does happen the owner is not held to account.

Its flesh shall not be eaten: No benefit may be derived from the flesh of such an ox, which means that its meat may not be fed even to animals (compare this to 22:30, where the Torah explicitly states: “You shall be holy people to Me: you must not eat flesh torn by beasts in the field; you shall cast it to the dogs”).

(29) If, however, that ox has been in the habit of goring, and its owner, though warned, has failed to guard it, and it kills a man or a woman — the ox shall be stoned and its owner, too, shall be put to death: If, however, the given possession or property was previously recognized as posing increased danger, then failure to take appropriate measures to forestall further tragedies is criminal negligence, and the Torah considers the killing to that extent to be deliberate.

(30) If ransom is laid upon him, he must pay whatever is laid upon him to redeem his life: All of the above notwithstanding, in actual practice the owner of the ox is not put to death; he is only required to make monetary restitution (in spite of appearances, the “if” of this verse is not conditional, but is in fact how the law is actually applied).

(31) So, too, if it gores a minor, male or female, [the owner] shall be dealt with according to the same rule: A minor son and daughter are exactly equivalent. Given the prevailing laws of those times, this legislation by the Torah was a significant innovation.

(32) But if the ox gores a slave, male or female, he shall pay thirty shekels of silver to the master, and the ox shall be stoned: Once again, this refers to non-Jewish slaves, and is generally consistent with the legal systems of that era.

(33-34) When a man opens a pit … and an ox or an ass falls into it, the one responsible for the pit must make restitution: A person is responsible for the consequences of his actions that result in damage to the property of another. But on the other hand, the Torah speaks of an ox or an ass falling into the pit, and not a human being, because a person must look where he is going. Thus, his first responsibility is to look out for his own safety, rather than shifting that responsibility onto others for not assuring his absolute security.

(35) When a man’s ox injures his neighbor’s ox and it dies, they shall sell the live ox and divide its price; they shall also divide the dead animal: In the absence of prior knowledge that the ox was aggressive, the court will not normally consider the question of “whose ox started first.” The law punishes the owners of the goring ox and the dead ox equally, thus forcing all parties to the conflict to take the same precautions.

(36) If, however, it is known that the ox was in the habit of goring, and its owner has failed to guard it, he must restore ox for ox, but shall keep the dead animal: The owner of the goring ox is in this case deemed criminally negligent.

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Bible Dynamics, VOL. 2. EXODUS Copyright © by Orot Yerushalaim / P. Polonsky / English translation of the Torah by the Jewish Publication Society, New JPS Translation, 1985. With sincere gratitude for the permission to use. All Rights Reserved.

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