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Interpretation of “Lex Talionis”
Capital Punishment Impossible
In Jewish Tradition
This article, written a few days prior to the ex
ecution of Caryl Chessman,' has great relevancy to
Israel's new chest-beating goal of vengeance.
By PHILIP SJLOMOVITZ,
The Detroit Jewish News
Caryl Chessman’s struggle to
escape execution at San Quentin
prison has revived interest in.
and has aroused new discussion
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of. Lex Talionis, the law of re
taliation. Many periodical have
carried feature articles linking
capital punishment with the
Biblical injunction of “Ayln tak-
haa ayln, sheln takhas sheln”—
“an eye for an eye and a tooth
for a tooth”—and it has been in
terpreted as “a Mosaic law of a
life for a life.” Few ever halt in
their references to Lex Talionis
to inquire as to the true Jewish
interpretation of the "eye for
an eye” injunction. Thq, battle
against capital punishment loses
its impetus by the failure of
those who interpret the law of
retaliation literally to acquaint
themselves with the true mean
ing ascribed to “ayin takhas
avin.” In reality. Jewish law
militates against capital punish
ment, and the actual interpreta
tion of the Lex Talionis is that
punishment shall be In the value
of the loss of an eye or a tooth,
such assessment to be set by
qualified judges.
One of the most learned arti
cles on the Law of Retaliation,
commonly known as Lex Talio
nis. was written for the Univer
sal Jewish Encyclopedia by Dr.
Julian Morgenstern. former
president of Hebrew Union Col
lege. In the opening paragraphs
of his scholarly essay. Prof.
Morgenstern pointed out that
this is a “law. or rather a legal
principle, cited three times in
the Pentateuch, each time in
somewhat varying form, and
usually referred to by the phrase
recurring in each of the three
versions ‘an eye for* an eve and
a tooth for a tooth’.” He then
proceeded to show how Jewry
has been harmed bv misinter
pretation of the law. and he
stated.
“This law has acquired parti
cular significance from the fact
that in one, and the most anti-
Jewish, version of the Sermon
on the Mount (Matt. 5:38-42; en
tirely missing in Luke 6) Jesus
is represented as saying. ‘Ye
have heard that it was said, An
eye for an eve and a tooth for
a tooth; bat I say unto you. Re
sist not him that is evil; but
whosoever smiteth thee on thy
right cheek, turn to him the
other also.’ From this passage
Christian theologians have in
ferred that the Lex Talionis is
a cardinal principle of Judaism,
and that Judaism must be there
fore s religion of vengeance,
mechanical justice and cruelty,
while. In significant contrast,
Christanity is a religion of non-
resistance. forgiveness, love, and
the higher justice that is tem
pered bv mercy. This Christian
interpretation of Judaism has
provided one of the most fre
quently treated themes of Jew
ish apologetics.
"Actually there is little direct
evidence anywhere in Jewish
literature, even in the Bible it
self, that the Lex Talionis was
ever applied In literal, mechni-
cal manner to any caw whatso
ever. The rabbis, conforming to
established Pharisaic tradition,
interpreted the Biblical law in
such manner as to permit a
money payment as damages In
every case where the Biblical
law, literally applied, would
have required some form of
bodily multilatlon comparable
to that originally Inflicted by the
offending person. Bat even more
careful examination of the three
Biblical passages In which the
Lex Talionis Is cited shows con
clusively that the formula, ‘an
eye for an eye and B tooth for a
tooth.’ Is not in a Angle one of
the three passages an integral
part of the main law under dis
cussion. but is In every case a
late addition to the law.”
Dr. Morgenstern there upon
evaluated the three instances,
and showed how the Lex Tali
onis has been misinterpreted, to
the detriment of Jewry.
In his Pentateuch and Hof-
torahs (in Exodus), the late
Chief Rabbi of the British Bn-
pire. Dr. Joseph H. Herts. show
ed that the law of foliation. ‘ as
interpreted and applied hi Jew
ish tradition, became “one of
the moot far-reaching in human
progress,” because “the literal
application of ‘eye for eye. tooth
for tooth’ was exclued in Rab
binic Law.”
In his commentary on Leviti
cus. Dr. Hertz wrote that “there
is in Jewish history no instance
of the law of retaliation ever
having been carried out literal
ly.” He added that “to the Tal
mudists the Biblical words eye
for eye had become a mere ex
pression of the law and of
equality.” Pointing to the con
trary practices in European and
Asiatic system of jurisprudence.
Dr. Hertz wrote: “On the one
hand. Judaism the so-called reli
gion of ‘strict justice.’ rejected
the literal application of the law
of retaliation and knew neither
torture in legal procedure nor
multilation as a legal punish
ment. In Christian lands, on the
other hand, mutilation and torj
ture are well-high the indis
pensable accompaniments of jus -
tice from the middle of the 13th
century down to the end of the
18th, and in some countries to
the middle of the 19th century
and bevond.”
These facts serve to prove how
deep-rooted is Jewish opposition
to capita) punishment. In his
discussion of Jewish court pro
cedures. the great Christian
Semitics and Talmudic scholar,
the late Prof. George Foot
Moore, in his “Judaism,” had
this to say:
“In the deliberations of Judges,
considerations tending to ac
quittal were given precedence.
The decision was by a majority;
a majority of one acquitted, but
for conviction there must be a
majority of at least two. Even
when the condemned man was
on the way to the place of ex
ecution. if he or any one else
had anything to offer in defense,
he was recalled and the new
evidence taken. Once acquitted,
however, he could not a second
time be put in jeopardy, what
ever new evidence against him
might come to light.
“It is clear that with such a
procedure conviction in capital
cases was next to impossible,
and that this was the intention
of the framers of the rules Is
equally plain. The Mishnah it
self brands a court which ex
ecutes one man In seventy years
as ruinous. R. Eleaxar ben Axa-
riah said ‘one in seventy years.'
R. Tarfon and R. Akiba said. ‘If
we had been In the Sanhedrin,
no man would ever have been
put to death.’ on which R. Sim
eon ben Gamaliel makes the
obvious reflection. ‘They would
multiply murderers in Israel.” It
should be observed, however,
that when the court was con
vinced of the guilt of the ac
cused. though the evidence did
not warrant his conviction and
execution, they might imprison
him on bread and water.”
Such is Jewish law. It is not
retaliatory, it condone* neither
taliation nor capital punishment.
And if it were Jewish law which
ruled California the Chessman
case would never be the world
wide sensation it has turned in
to. and no one would be held
up to contempt anywhere, as
some who advocate capital pun
ishment are today in some quar
ters. Because capital punish
ment. under Jewish tradition,
would be completely ruled out.
Argentine
Remains at UN
UNITED NATIONS. NY.. (J
TA)—Rumors that the Argen
tine Ambassador to the United
Nations has been summoned
home in connection with his
government’s reported threat to
complain to the UN Security
Council against Israel’s attitude
regarding the case of Nazi ex
ecutioner Adolf Eichmann. were
officially and firmly denied here
bv the Argentine delegatipn
last week
Argentina’s permanent repre
sentative here, Dr. Marie Ama-
deo. left for Buenos Aires on
Mav 29, the dav after the Se
curity Council had completed de
bate on the Soviet Union’s com
plaint against the United States
overflights of the USSR in the
U-2 case. Argentina is a mem
ber of the Security Council.
The Argentine delegation did
act. however, to bring the issue
up at the UN with a letter to
the current President of the
Security Council. Dr Tingu F.
Tsiang of Nationalist China.
Ambassador Amadeo. along
with a number of other diplo
mats from various capitals, had
been summoned home for con
sultations with President Arturo
Frondizi. in preparation for the
Argentine President’s forthcom
ing trip to Europe, a spokesman
for the delegation declared. Dr.
Amadeo is due back at his post
here Sunday.
The Argentine spokesman
pointed out that the UN Am
bassador’s trip to Buenos Aires
was begun before the Eichmann
case had become a disputed
issue between Argentina and
Israel.
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