Dr. Yoni Pomeranz
|Abstract: The rabbinic laws of personal injury differ markedly from those in the Torah. They are, however, substantially similar to the laws of personal injury that guided Roman courts in Palestine in the second century CE. Reading perek ha-ḥovel (m. Bava Kamma 8) alongside Roman law codes reveals the influence that Roman law had on rabbinic law. Roman models were responsible for the rabbinic rejection of a strict “eye for an eye” law, the calculation of נזק by valuing the victim as a slave, and the idea that an assailant could be liable for payments for בושת.|
Introduction: The Five Types of Compensation for Personal Injury
The first mishnah of the eighth chapter of m. Bava Kamma, requires an assailant to pay his victim five types of compensation:
משנה בבא קמא ח:א
החובל בחברו חייב עליו משום חמשה דברים בנזק בצער ברפוי בשבת ובבשת.
m. Bava Kamma 8:1
One who injures his fellow is liable for five things: injury (nezek), pain (tza‘ar), medical expenses (ripui), recuperation time (shevet), and shame (boshet).
The Mishnah goes on to detail how each type of financial compensation is evaluated: “Injury” (נזק) is the loss of value to the victim, based on how much he would be worth as a slave in the market following the assault; “pain” is the amount of compensation a person would be willing accept in order to suffer similar pain; “medical expenses” and “recuperation time” are fairly straightforward; “shame” entails compensation for the harm to the victim’s honor incurred due to the attack.
The Torah’s Talion Law
This complex system of compensation is remarkably different from the Torah’s provisions for dealing with cases of assault:
ויקרא פרק כד:יט-כ
וְאִישׁ כִּי יִתֵּן מוּם בַּעֲמִיתוֹ כַּאֲשֶׁר עָשָׂה כֵּן יֵעָשֶׂה לּוֹ שֶׁבֶר תַּחַת שֶׁבֶר עַיִן תַּחַת עַיִן שֵׁן תַּחַת שֵׁן כַּאֲשֶׁר יִתֵּן מוּם בָּאָדָם כֵּן יִנָּתֶן בּוֹ:
If anyone maims his fellow, as he has done, so it shall be done to him: fracture for fracture, eye for eye, tooth for tooth. The injury he inflicted on another shall be inflicted on him. (NJPS)
According to Leviticus, a simple calculation of “an eye for an eye” is applied to cases of assault. If the assailant maims the victim, the assailant is punished by suffering the same harm. This type of law is referred to in Latin as lex talionis (law of equivalent punishment) or in English as talion law.
An Eye for an Eye in First Century Judaism:
A Literal Interpretation
Rabbinic Judaism offers the earliest evidence of Jewish interpreters reading the phrase “an eye for an eye” non-literally. All earlier sources understand it literally. For example, Philo of Alexandria (early first century CE) defends the justness of the law, as understood literally:
If, then, anyone has maliciously injured another in the best and lordliest of his senses, sight, and is proved to have struck out his eye, he must in his turn suffer the same, if the other is a free man, but not if he is a slave.1
Likewise, Flavius Josephus (end of the first century CE), while acknowledging that the law gave the victim the option of accepting monetary compensation in place of taking the assailant’s eye, still assumed that the basic rule was one of talion, which the victim could choose to override.2
Talion and the Possibility of Compensation
Josephus’ version may reveal an original understanding – or at least an early understanding – of how the biblical talion really worked. Some scholars argue that judicial systems that had a talion law did not actually put many people’s eyes out.3 The argument goes like this: If we assume that the assailant and the victim were similarly financially situated, the assailant probably wanted to keep his eye more than the victim wanted to blind the assailant. As a result, there would be a sum of money that the assailant would be willing to pay and which the victim would be willing to accept, instead of having the assailant’s eye put out.
Such a practice of allowing (though not requiring) compensation in place of the talion may be reflected in the Torah:
וְלֹא תִקְחוּ כֹפֶר לְנֶפֶשׁ רֹצֵחַ אֲשֶׁר הוּא רָשָׁע לָמוּת כִּי מוֹת יוּמָת:
וְלֹא תִקְחוּ כֹפֶר לָנוּס אֶל עִיר מִקְלָטוֹ לָשׁוּב לָשֶׁבֶת בָּאָרֶץ עַד מוֹת הַכֹּהֵן:
Numbers 35: 31-32
You may not accept a ransom for the life of a murderer who is guilty of a capital crime; he must be put to death.
Nor may you accept ransom in lieu of flight to a city of refuge, enabling one to return to live on his land before the death of the priest.4
This law from Numbers insists that the family of a murdered – or accidentally killed – person may not accept compensation in place of the legally prescribed punishment. The need for this emphasis may imply that taking compensation was a common practice,5 and the Torah only forbids taking compensation in a case in which a person has been killed. Taking compensation in place of injury was legal and probably common.
Even if we assume that the talion was rarely carried out in practice, the rabbinic system of compensation for injury, which eliminated physical punishment altogether, is radically different from the pre-rabbinic approach to which Josephus attests. What motivated the rabbis to innovate so radically when it came to the law of battery?6
Rabbinic Battery Law and Roman Law
By the time of the Mishnah, Jews in Roman Palestine, including the rabbis, had been living under Roman rule for several centuries. Thus, it is instructive to consider how Roman law and culture might have influenced rabbinic law, especially when the rabbinic law differs sharply from the Bible.7
The Evolution of Roman Law: From Talion to Monetary Compensation
The Romans had an early talion law, which was codified in the Twelve Tables, the first Roman Law code, created in the early years of the Roman Republic (around the middle of the 5th century BCE). The relevant section of the Twelve Tables has been reconstructed by scholars as follows:
If a person has maimed another’s limb, let there be retaliation in kind unless he makes an agreement for composition with him.8
By the time of the rabbis, however, the Romans had long abandoned the talion law.9 A dialogue composed by the second century Latin writer, Aulus Gellius, suggests that the Romans found the talion to be cruel and absurd.10 This dialogue has a philosopher take the position that the law, as written in the Twelve Tables, was impossible to carry out:
[S]ome things in those laws … cannot.. be carried out; for instance, the one referring to retaliation, which reads as follows… “If one has broken another’s limb, there shall be retaliation, unless a compromise is made.” Now not to mention the cruelty of the vengeance, the exaction even of a just retaliation is impossible. For if one whose limb has been broken by another wishes to retaliate by breaking a limb of his injurer, can he succeed, pray, in breaking the limb in exactly the same manner?11
A similar perception may have led the rabbis to radically reread and reinterpret biblical law.
Nezek and Lex Aquilia
Roman law partially replaced the rule of talion with a law known as the Lex Aquilia. The Lex Aquilia, which dealt with damage to property, provided a legal remedy specifically in the case of harm to slaves.12 Eventually, the law’s scope was expanded so that free Romans who were legally in the power (potestas) of a family patriarch could also be compensated if they suffered bodily harm.13 The damages assessed under this law were equivalent to the loss of value of the slave as the market would assess them. 14
As summarized earlier, m. Bava Kamma 8:1 explains that nezek is calculated based on the loss of the victim’s value, as if s/he were a slave being sold in the market:
…בנזק כיצד סימא את עינו קטע את ידו שיבר את רגלו רואין אותו כאילו הוא עבד נמכר בשוק ושמין כמה היה יפה וכמה הוא יפה…
|…How is it with injury? [If] he blinded his eye, cut off his hand, [or] broke his leg – they regard him as if he were a slave sold in the market: they assess how much he was worth and how much he is worth…|
Given the similarities between this law and the Roman law, it is likely that this rabbinic law was adapted from the Roman legal system.15
בשת and Iniuria
The category of בשת (shame) is also closely related to an aspect of the Roman legal system. Under Roman law at the time of the rabbis, the main legal action available to a victim of assault was known as “iniuria” (usually translated as “contumely” or “insult”). Under a series of provisions, grounded in a praetorian edict from 206 BCE and a number of subsequent edicts, a free Roman could sue if he had been assaulted or insulted, in order to be monetarily compensated for damage to his honor. Iniuria was considered aggravated (atrox) when it was inflicted by someone of inferior rank on someone of superior rank.16
The rabbinic category of בשת appears to be drawn from Roman law. This is strongly suggested by the explanatory part of m. Bava Kamma 8:1, where the most striking feature of בשת is that the amount of the damages depends on the rank of the assailant and the victim:
…בשת הכל לפי המבייש והמתבייש…
|Shame – everything is according to the one who shames, and the one who was shamed…|
Roman Law and the Mishnah’s Ambivalence about Compensation for Honor
Knowledge of the Roman law of battery not only helps explain the emergence of its rabbinic equivalent, but can resolve problems within the rabbinic texts themselves.17 For example, the sixth mishnah in the 8th chapter of m. Baba Kamma contains a subtle but significant contradiction with the laws of בשת, as they are presented in the first mishnah.
משנה בבא קמא ח:ו[א] התוקע לחבירו נותן לו סלע.
רבי יהודה אומר משום רבי יוסי הגלילי מנה. סטרו נותן לו מאתים זוז. לאחר ידו נותן לו ארבע מאות זוז.צרם באזנו תלש בשערו רקק והגיע בו רוקו העביר טליתו ממנו פרע ראש האשה בשוק נותן ארבע מאות זוז. [ב] זה הכלל הכל לפי כבודו. [ג] אמר רבי עקיבא אפילו עניים שבישראל רואין אותם כאילו הם בני חורין שירדו מנכסיהם שהם בני אברהם יצחק ויעקב…
m. Bava Kamma 8:6[A] One who shouts into his fellow’s ear – gives him a selah (four zuz). Rabbi Yehuda says in the name of R. Yosi the Galilean – a maneh (100 zuz). If he slapped him – he gives him 200 zuz. [If he slapped him] with the back of his hand he gives him 400 zuz. If he slit his ear, pulled up his hair, spit and his spit reached him, removed his garment from him, uncovered the head of a woman in the market – he gives 400 zuz. [B] This is the general rule: everything is according to his honor. [C] R. Akiva says: even the poor among Israel are regarded as free people who have lost their property, for they are the children of Abraham, Isaac, and Jacob…
Part A of this mishnah presents a system of fixed penalties for insulting actions; these do not consider the status of the assailant and the victim. This contradicts the basic rule of payments for בושת as laid out in the first mishnah in the chapter – “everything is according to the one who shames, and the one who is shamed.” Part B of the mishnah, however, presents a general rule – “everything is according to his honor,” which seems to reassert the earlier principle of “everything is according to the one who shames, and the one who is shamed.” Yet, Part C immediately states the dissenting opinion of Rabbi Akiva: “even the poor among Israel are regarded as free people who have lost their property,” suggesting, like Part A, that status and honor should not be considered.
M. Bava Kamma 8:6 preserves two contradictory approaches to compensation for shame: The system of fixed penalties (A) fits with R. Akiva’s opinion (C): All Jews are considered to have equal honor and therefore are entitled to equal compensation for shame. On the other hand, the general rule that “everything is according to his honor” (B) fits well with the description of בושת in the first mishnah, that “everything is according to the one who shames and the one who is shamed….”
Solving the Contradiction:
Midrashim of R. Akiva versus R. Ishmael
Scholars have suggested that these contradictory approaches represent, in fact, two different systems of evaluating damages for the humiliating injuries. As recently demonstrated by Amit Gvaryahu,18 each system comes from one of the two early rabbinic schools associated with R. Ishmael and R. Akiva respectively. The system of בושת is found only in midrashim from the school of R. Ishmael and likely originated there. The system of fixed payments is only found in midrashim from the school of R. Akiva.
R. Akiva’s Rule in Action: The Case of Uncovering a Woman’s Head
The system of fixed payments and the values that underlie it are further associated with R. Akiva in the story in the continuation of m. Bava Kamma 8:6:
מעשה באחד שפרע ראשה של אשה ובאת לפני ר’ עקיבה וחייבו ליתן לה ארבע מאות זוז. אמ’ לו ר’ תן לי זמן ונתן לו.
שימרה עומדת על פתח חצירה ושבר את הפך בפניה ובו כאסר שמן וגילת את ראשה והיתה מטפחת ומנחת על ראשה והעמיד עליה עדים ובא לפני ר’ עקיבה ואמ’ לו ר’ לזו אני נותן ארבע מאות זוז.
אמר’ לו ר’ עקיבה לא אמרתה כלום שהחובל בעצמו אף על פי שאינו רשיי פטור ואחרים שחבלו בו חייבים והקוצץ את נטיעותיו אף על פי שאינו רשיי פטור ואחרים שקצצו את נטיעותיו חייבים
|It once happened that someone uncovered the head of a woman and she came before R. Akiva and [R. Akiva] declared [the man] liable to give her four hundred zuz. [The man] said: Rabbi, give me time. And he gave it to him.
[The man] watched her standing at the entrance to her courtyard and he broke a jug in her presence and in [the jug] was about an as19 of oil and the woman revealed her head and was collecting [the oil] with her palm and placing [it] on her head. And he appointed witnesses against her and he came before R. Akiva and said to him: Rabbi, to this one should I give four hundred zuz?
R. Akiva said to him: You have not said anything, for one who injures himself – even though it is not permitted – is exempt. Others who injure him are liable. And one who cuts his (young growing) shoots – even though it is not permitted – is exempt. Others who cut his shoots – are liable.
In this story, R. Akiva rules that a man who uncovered the head of a woman is liable for a payment of 400 zuz. This is in accordance with the ruling in the part A of m. 8:6, according to whichone who uncovers the head of a woman in the market must pay 400 zuz.20
The man argues that the woman is not entitled to such a payment, because she does not value her honor so highly: she uncovers her own head in order to make use of a small quantity of oil. Rabbi Akiva, however, asserts that the woman’s honor cannot be diminished, even by her own actions. The story illustrates R. Akiva’s belief that penalties are fixed and that all Jews, regardless of their economic status, should be considered equally honorable.
R. Akiva’s Principle of Irreducible Jewish Dignity
Elsewhere in rabbinic literature, R. Akiva is associated with positions that proclaim the irreducible dignity of all Jews (or even all people), most famously the following teaching: חביב אדם שנברא בצלם … חביבין ישראל שנקראו בנים למקום. “Beloved is man who was created in God’s image…beloved are Israel who are called the children of God.”21 The attribution to R. Akiva fits with the law advocated by the school of R. Akiva, which prescribes fixed penalties for insulting actions, and which rests on the assumption that all Jews have equal dignity.
Irreducible Jewish Dignity
Versus Roman Notions of Honor
The first mishnah’s approach to בושת not only closely resembles Roman law but also has affinities with widely held notions of honor in the Roman world. For Romans, or at least for Roman elites, a person’s worth was tied to his honor, a public evaluation of the worthiness of his actions, his ancestry, and his wealth. By the early third century CE, Roman law formally distinguished between honestiores (“those more honorable”) and humiliores (“those less honorable”); people in the different classes were subject to different penalties for the same crimes.
The approach of the school of R. Akiva has a much more ambivalent attitude toward the Roman concept of honor. It both draws upon, and modifies, the views of the Torah. The Torah lacks almost any concept of human honor. The words for honor in the Torah are applied to God almost exclusively (though parents and elders are to be honored as well). The laws of m. Bava Kamma 8:6, which specify that penalties are applied for humiliating actions, lack precedent in the Torah. However, R. Akiva’s views are in line with the Torah’s dominant view that all people – or at least all free adult male Israelites – have equal worth. Even as R. Akiva’s system adopts the Roman idea of the centrality of personal honor, it subverts that idea by asserting that all Jews have equal honor.
Ultimately, the Mishnah incorporates both systems. While this makes its law somewhat incoherent and contradictory, it also appropriately reflects the internal conflict within the rabbinic movement about Roman norms of honor.22
Rabbis under Roman Rule
Studying perek ha-ḥovel in light of Roman law helps explain the divergence of rabbinic law from the laws of the Torah. Jews living in Palestine in the mid-second century CE were dealing with the realities of Roman rule. This meant that a significant number of Jews had access to the Roman court system, and that rabbinic courts had to compete with Roman courts for litigants. In light of the cultural prestige that the Romans had as the rulers, the rabbinic talion law may have seemed primitive by comparison to the Roman law of battery.
But notions of honor were central to the Roman Empire’s hierarchy, in which the victorious Roman rulers stood above the conquered Judeans. It would have been hard for the rabbis to fully accept a hierarchy that placed them near the bottom. The notion that people had different levels of honor also stood in significant tension with the Torah’s egalitarian leanings.23 Under these circumstances, it is not surprising that the rabbinic movement was ambivalent about the idea that people’s worth was public, subject to evaluation by others, and markedly unequal.
Balberg, Mira. “Pricing Persons: Consecration, Compensation, and Individuality in the Mishnah.” Jewish Quarterly Review 103 (2013): 169-195
Gvaryahu, Amit. “The Tannaitic Laws of Battery” [in Hebrew]. M.A. Thesis, Hebrew University, 2012.
Lewis, Shmuel. “And before Honor – Humility”: The Ideal of Humility in the Moral Language of the Sages [in Hebrew]. Jerusalem: Y.L. Magnes, 2013
Miller, William Ian. Eye for an Eye. Cambridge University Press, 2005.
Schwartz, Seth. Were the Jews a Mediterranean Society?: Reciprocity and Solidarity in Ancient Judaism. Princeton, N.J.: Princeton University Press, 2010.
- Philo, The Special Laws, 3.195. ↩
- Jewish Antiquities 4.281. ↩
- William Ian Miller, Eye for An Eye (Cambridge University Press, 2005), 46-57. ↩
- NJPS Translation. ↩
- Also attested in Exodus 21:30 and Proverbs 6:5. ↩
- In its opening discussion of m. Baba Kamma 8, the Bavli (b. Bava Kamma 83b-84a) cites a number of teachings that argue that the biblical phrase “an eye for an eye” really means that the assailant should financially compensate the victim. This is despite the fact that the law in the Torah is clear: the penalty for bodily harm is equivalent bodily harm to the assailant’s body. The Bavli’s discussion is an example of a common rhetorical move used by legal interpreters: an innovative law is attributed to a significantly older authoritative legal text, despite the fact that the older text nowhere hints at the newer law. See e.g. Richard Posner, Divergent Paths: The Academy and the Judiciary (Cambridge, MA: Harvard University Press, 2016), 92-98 ↩
- Some recent scholarship that discusses parallels between rabbinic and Roman law includes: Bernard S. Jackson, “On the Problem of Roman Influence on the Halakah and Normative Self-Definition in Judaism,” in Jewish and Christian Self-Definition, ed. Ed P. Sanders (Philadelphia: Fortress, 1981), pp. 157-203: Hannah Cotton, “The Guardianship of Jesus Son of Babatha: Roman and Local Law in the Province of Arabia,” The Journal of Roman Studies 83 (1993), 94-108; and Leib Moscovitz, “Legal Fictions in Rabbinic Law and Roman Law: Some Comparative Observations,” in Rabbinic Law in Its Roman and Near Eastern Context, ed. Catherine Hezser, Texts and Studies in Ancient Judaism (Tübingen: Mohr-Siebeck, 2003). One of the most revealing parallels between rabbinic and Roman law is in the area of personal status: laws concerning the status of children of Roman citizens and noncitizens may have influenced the rabbinic law that eventually became the matrilineal principle. See Shaye J.D. Cohen, “The Origins of the Matrilineal Principle in Jewish Law,” AJS Review 10 (1985), 19-53 and Christine Hayes, “Genealogy, Illegitimacy, and Personal Status: The Yerushalmi in Comparative Perspective,” in The Talmud Yerushalmi and Graeco-Roman Culture III, ed. Peter Schaefer (Mohr Siebeck, 2002), 72-89. See also Yair Furstenberg, “The Romanization of Early Rabbinic Law in a Provincial Context,” here. ↩
- Based on Alan Watson, “Personal Injuries in the XII Tables,” Tijdschrift voor Rechtsgeschiedenis 43 (1975): 213. ↩
- It is hard to know exactly when the Romans abandoned the talion rule. While the Lex Aquilia dates to the early 3rd century BCE, it is unlikely that the talion ended at the exact moment that the Lex Aquilia was passed. The Lex Aquilia was originally understood to deal only with harm to slaves, while the first edict creating the laws of iniuria would not be issued until 206 BCE. ↩
- Aulus Gellius, Attic Nights, 20.1.14-18. ↩
- Ibid., 20.1.14–15. The translation is from John Carew Rolfe, The Attic Nights of Aulus Gellius, (Putnam; London and New York, 1927), p. 413. ↩
- The second of these provision, iniuria, will be discussed below. ↩
- See The Digest of Justinian, 9.2.7 pr. ↩
- The Digest of Justinian 220.127.116.11. Note that the costs of medical care were also recoverable under this law. ↩
- Notably, it is not intuitive that the harm from battery should be measured as a person’s loss of value as a slave, nor is this idea found in the Torah. There are other similarities between Roman law and rabbinic נזק, including the rule that lunatics and children are exempt from liability. See m. Baba Kamma 4:4 and Digest of Justinian 18.104.22.168. ↩
- Digest of Justinian 22.214.171.124; Institutes of Gaius 3.225. ↩
- On reading Rabbinic בושת in light of Roman law, see Mira Balberg,. “Pricing Persons: Consecration, Compensation, and Individuality in the Mishnah,” Jewish Quarterly Review 103 (2013): 169-195. ↩
- Amit Gvaryahu, “The Tannaitic Laws of Battery” (M.A. Thesis, Hebrew University, 2012), 44-51 ↩
- A small unit of Roman currency, worth about 1/16 of a Roman denarius ↩
- Indeed, most editions of the Mishnah (though not the mishnah text in this article, which comes from the Kaufmann manuscript) state explicitly that the man uncovered the woman’s head in the market. ↩
- Mishnah Avot 3:14. ↩
- Seth Schwartz, Were the Jews a Mediterranean Society?: Reciprocity and Solidarity in Ancient Judaism (Princeton, N.J.: Princeton University Press, 2010), 110-165. ↩
- Schwartz, Were the Jews, 25-26. ↩