#*#*#*#*#*#*#*#*#*# (C) Dr Hendel, 2000 *#*#*#*#*#*#*#*#*#*#*#*#*#*
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| Rashi is Simple Version 2.0 |
| (C) Dr Hendel, Summer 2000 |
| http://www.RashiYomi.Com |
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VERSE: Dt19-21a
NOTE: We explain the famous "An eye for an Eye" Verse
RULE: Jewish Laws **requires** courts to be biased towards mercy
This requirement is based on explicit Biblical verses. The
consequent bias towards mercy in turn justifies a merciful
interpretation of verses.
EXAMPLES:(Verses explicitly requiring bias towards mercy)
--------
EXAMPLE 1: Ex23-02
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Ex23-02 "Don't use a majority for bad things(ie convictions)"
RASHI: Hence, the explicit shocking law that "To acquit you
only need a majority of 1 but to convict you need a majority
of 2" (ie If a court voted to convict a murderer 12 to 11 then
the person is NOT convicted)
EXAMPLE 2: Dt16-20
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Dt16-20 "Justice Justice Pursue"
RASHI: In general repeated nouns are always interpreted
broadly to include any case. Hence Rashi combining this
verse with Ex23-07 "..do not execute a RIGHTEOUS or INNOCENT
person" says "Exempt the person from execution whether he is
actually RIGHTEOUS or was found (incorrectly) INNOCENT"
In other words you *can* reverse a conviction if you find
new evidence but you *can't* reverse an acquittal even if
you find you made a mistake. As the Rambam says "exempt
the person from conviction as long as you find any reason
to exempt him" (Rambam, Laws of Parliament 20:1). Thus as
we indicated Jewish Law is biased towards mercy
EXAMPLE 3: Nu35-24:25
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Nu35-24:25 "And the congregation shall JUDGE..& SAVE
TALMUD: In other words the primary purpose of judgement
is to SAVE the accused (if possible). This verse has
given rise to numerous institutions designed to encourage
acquitals:
--a judged who advanced an argument for acquital cannot
reverse himself and argue for conviction
--a student who advanced an argument for acquital is
promoted to the court bench
--students not on the bench may not offer arguments for
conviction
--as already indicated convictions require a majority
of 2 but acquitals require only a simple majority
Again, Jewish law is biased towards mercy
EXAMPLE 4: Lv19-18
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Lv19-18 "Love thy colleague like thyself"
TALMUD: The talmud uses this verse to justify that
convicted murderers are drugged before execution so that
they should not experience pain(Sanhedrin 45-46) (In other
words we must "love" the murderer as ourselves)
EXAMPLE 5: Lv19-15
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Lv19-15 "Judge your colleagues without prejudice"
RASHI: The sequence of verses justifies this interpretation
-Do not harass with questions during a lawsuit
-Do not acquit a person because he is poor
-Do not act deferential towards the rich
-But Rather simply judge the ACT on its merits
COMMENT: A similar law exists in American law. Roughly
speaking this law requires you to judge the ACT and not
the PERSON. So you treat a thief who robbed the same way
you treat a person who robbed once---in particular since
you are judging the person as if this is the only time he
did this therefore you shouldn't be vindicative in penalties.
SUMMARY:
-------
{LIST1} {Jewish law is biased towards mercy}
EXAMPLE VERSE HOW VERSE PROMOTES MERCY
---------- ---------- ---------------------------------------
EXAMPLE 1: Ex23-02 Convictions by 2; acquitals by 1
EXAMPLE 2: Dt16-20 Convictions are reversed; not acquitals
EXAMPLE 3: Nu35-24:25 Encourage students/judges for acquitals
EXAMPLE 4: Lv19-18 Love the murderer like thyself!
EXAMPLE 5: Lv19-15 Judge the act not the person
APPLICATION
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In reviewing laws of bodily damages we find 5 categories
of damage. Here are the categories, verses and payments
{LIST2} {Categories for damages. See Rambam Torts 1}
DAMAGE VERSE COMPENSATION
-------------- ------- -----------------
DISABILITY Ex21-19 Money
MEDICAL Ex21-19 Money
PAIN Dt22-29 Money
EMBARASSMENT Dt25-12 Cut her hand off
OVERALL DAMAGE Ex21-24 An eye for an eye*1
NOTES
-----
*1 By overall damage we mean depreciation in the
persons' worth as say a full time servant. Eg If you
took his eye out, besides paying him pain, embarassment
disability and medical you assess how much less he
is worth as a servant without an eye.
It appears as if the punishment for taking someones eyes
out is to have your own eyes taken out ("an eye for an eye")
But Rashi explicitly says in 4 places that the punishment
is monetary.
{LIST3} {Verses were Rashi/Chazal interpret compensation
to be monetary not vindicative}
VERSE RASHI INTERPRETS COMPENSATION TO BE MONETARY
-------- --------------------------------------------
Ex21-14a The monetary value of an eye for an eye
Lv24-20a Pay money for damages to an organ
Dt19-21a The monetary value of an eye for an eye
Dt25-12a Cut her hand off = Cut a payment for her damages
Why? Isn't Rashi/Chazal violating the literal simple meaning
of the text. Even if we do interpret these verses this way
how can we say that this is the 'simple meaning' of the
text.
But the reason for asserting that this interpretation is
monetary comes from the technique of OTHER VERSES.
Sure, if all the Torah had said was "an eye for an eye"
then that would mean that if you damaged someones eye
than your eye is taken out.
But as we showed in {LIST1} the Bible explicitly insists
on a bias towards mercy in 5 explicit verses. It is this
context and atmosphere that forces us to twist the meaning
of the verses to mean monetary compensation. As can be
seen from {LIST2} 3 of the 5 categories of damage are
explicitly monetary. Hence combining the atmosphere of
{LIST1} which requires a bias towards mercy with the
monetary requirements of 3 of the 5 cases forces us to
interpret the remaining verses monetarily also.
In other words: If I find the verse "an eye for an eye"
in Hamurabis code then I will interpret it literally. But
if I find it in a Torah which demanded "saving" "loving like
thyself" & "judging without prejudice" then I will interpret
it monetarily. Hence the same verse can mean 2 different
things in 2 different contexts. Hence we have every
right to declare this interpretation as simultaneously
twisted and simple.
ACKNOWLEDGEMENT: To Michael Krumbein for pointing out
the inadequacy of my previous attempts on "an eye for an eye"
COMMENT: We could write a great deal more. Suffice for now
to point out that the Rambam, Chapter 1 of Torts, provides
{LIST2}, which shows that most damages are paid monetaraly.
We have added to the Rambams explanation {LIST1} which shows
that the Bible created an atmosphere and bias towards mercy.
Most of {LIST1} occurs in the Rambam also but not in this
chapter. Rashi also brings these verses down--we have
gathered them in one place.
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Volume 6 Number 25
#*#*#*#*#*#*#*#*#*# (C) Dr Hendel, 2000 *#*#*#*#*#*#*#*#*#*#*#*#*#*
Volume 6 Number 25