Masei (5764)

From the book Mida Tova: Articles on the Hermeneutical Principles by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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With God’s help

Mida Tova — Eve of Shabbat, Parashat Masei, 5765

Questions

1. When does a matter that departs from a general category teach about a parallel case, when about the entire category, and when about itself?
2. Do the values of the interpreter play a role in midrashic inference?
3. Why was the principle of “teaching about a parallel case” not included in Rabbi Ishmael’s list?
4. Is there anyone who disputes the exposition “eye for eye” as monetary compensation?
5. What is the relationship between peshat and drash?
6. What is the significance of the plain sense in a place where drash takes the verse away from that plain sense?
7. What does all this have to do with Rabbi Chaim of Brisk’s method of “two laws”?

The Principles

• A matter that departed from the general category to teach about a parallel case.
• A matter that departed from the general category to teach about itself.
• A matter that departed from the general category to teach about the entire category.

“You shall accept no ransom for the life of a murderer who is guilty of death, for he must surely be put to death. And you shall accept no ransom for one who has fled to his city of refuge, so that he may return to dwell in the land before the death of the priest. You shall not pollute the land in which you are, for blood pollutes the land, and the land cannot be expiated for the blood shed in it except by the blood of the one who shed it. And you shall not defile the land in which you dwell, in whose midst I dwell, for I, the Lord, dwell in the midst of the Israelites.”

— Numbers 35:31-34

“A matter that was included in a general category and departed from it to teach about a parallel case—how so? ‘You shall accept no ransom for the life of a murderer’ (Numbers 35). Was not the execution of a murderer included among all punishments? Why, then, did it depart? To teach: for a murderer no ransom is taken, but ransom is taken for a tooth and an eye, for a hand and a foot, for a burn and a wound, and for other injuries.”

— Baraita of the Thirty-Two Hermeneutical Principles, principle 25

A. A Matter That Departed from the General Category to Teach About a Parallel Case

Introduction

In this essay we will discuss the hermeneutical principle of drash, “a matter that was included in a general category and departed from it to teach about a parallel case.” The midrash (rabbinic interpretation) cited above, in which this principle appears, deals with the question of kofer (ransom payment) for principal limbs. In fact, behind these words stands the famous and controversial exposition: “eye for eye” means monetary compensation. The discussion here therefore has two focal points: first, understanding the nature and role of the hermeneutical principles in general; and second, understanding this particular principle and its relation to Rabbi Ishmael’s principles. We will now elaborate a bit on these two aspects.

Is Midrash a Free Tool for Adapting Verses to the Interpreter’s Values?

In the exposition of “eye for eye,” we take the verse away from its apparent plain sense and interpret the punishment differently: instead of gouging out an eye, which seems to be the straightforward meaning of the verse, we understand it as the imposition of monetary liability. Our midrash may serve as an explanation for the source of that other exposition; in the words of the Sages, several possible sources exist for it.¹

It is important to notice the implications of this connection between the two midrashim for our understanding of the nature of drash in general. From the exposition of “eye for eye,” one might seemingly conclude that the Sages can do whatever they wish with the verses. Whatever does not appeal to them, they interpret and pull away from its plain sense, drawing whatever conclusions they find appropriate.² On that basis one sometimes encounters demands even from scholars of our own time to reinterpret the halakha (Jewish law) so as to fit the spirit of the age and the demands of morality.

Maimonides, in the introduction to his Commentary on the Mishnah, writes that this exposition is a law transmitted orally to Moses at Sinai. That, of course, undercuts this line of evidence regarding the nature of rabbinic midrash. But another possibility also exists: if there is some other midrashic source that grounds the rabbinic reading of the verse “eye for eye.” The exposition before us is such a source.

We certainly join the call to restore the use of the hermeneutical principles to its proper place—of course, only after reconstructing and attaining an understanding of how they operate. But it is entirely clear that these principles cannot serve as a free and arbitrary tool for adapting the text to the interpreter’s wishes, or to the spirit of the time. The expositions are based on hermeneutical principles given to us at Sinai. These principles are tools whose use is governed by rules and principles. It follows that there are criteria distinguishing a valid exposition from an invalid one, and it is obvious that they cannot be manipulated at will, however moral or exalted the desired result may be.

On the other hand, we should add that the values of the interpreter—values that may themselves be influenced by the spirit of the times—certainly do affect his interpretation. Midrash may therefore express such values, as Halbertal argues in his above-mentioned book. But it is clear that the hermeneutical principles are not arbitrary tools of unlimited flexibility. Values can be only one consideration among the wider set of textual and interpretive considerations that lead to the midrashic conclusion.³

Why Does the Principle of “A Matter That Departed from the General Category to Teach About a Parallel Case” Not Appear in Rabbi Ishmael’s List?

This principle is one of the thirty-two hermeneutical principles of Rabbi Eliezer son of Rabbi Yose the Galilean, which appear in Sefer Keritut and in Eisenstein’s Otzar ha-Midrashim. We have already discussed several times the relation between these principles and Rabbi Ishmael’s thirteen hermeneutical principles. Already in the essay on Parashat Vayeshev, we noted that Rabbi Samson of Chinon, author of Sefer Keritut, explains with respect to each of the thirty-two principles why it does not appear in Rabbi Ishmael’s list. Regarding some, he explains that they belong only to aggadic exposition; regarding some, that they are disputed; and regarding others, that they are considered explicitly written in the Torah.

What about the principle with which we are dealing here? In the words of the author of Sefer Keritut, the explanation regarding this principle is not entirely clear. Immediately after presenting this principle, he begins to discuss whether one may reason from a parable in matters of Torah and commandment, or only in the prophetic writings. But the principle concerning parable is principle 26, the one that follows this one. There may therefore be a textual corruption in the version of Sefer Keritut.⁴ In any case, it is not clear whether his words contain any explanation for why this principle was not counted by Rabbi Ishmael.

We must therefore try to explain this ourselves. At first glance, there is no reason to assume that this principle is regarded as explicitly written in the Torah. Moreover, the midrash cited above—which is the canonical example brought by the Baraita of the Thirty-Two Hermeneutical Principles itself—is a halakhic exposition. It therefore seems that this is indeed a halakhic principle.

We saw a similar phenomenon in the essay on Parashat Pinhas. There we noted that principle 24, the one immediately before ours—”a matter that departed from the general category to teach about itself”—is apparently an aggadic principle, yet we found it there in a halakhic exposition. There we explained this by noting that the departure from the general category discussed in that midrash has the character typical of such departures in halakhic verses. Therefore, in that exceptional case, an aggadic principle is used in halakhic exposition.

In our case that explanation is less plausible, since the midrash with which we are dealing is the canonical example brought by the Baraita of the Thirty-Two Hermeneutical Principles. It is unlikely that the canonical example chosen would be precisely an exceptional and anomalous case.

It therefore seems that this principle was not brought by Rabbi Ishmael because he himself disagrees with it. In his view, a matter that departs from the general category reveals something about the category itself, not about some parallel specific case.

Perhaps here we can also find the reason why the author of Sefer Keritut did not explain the absence of this principle from Rabbi Ishmael’s list. In the previous principle—principle 24, “a matter that was included in a general category and departed to teach about itself”—he proposed that Rabbi Ishmael disagrees with that principle because he holds that departure from the category teaches about the category as a whole, not about the item that departed from it. See the essay on Parashat Pinhas. According to that explanation, it is obvious that for the very same reason Rabbi Ishmael would disagree with our principle as well: for Rabbi Ishmael, every departure from a general category is meant to teach about the category. Not about the departing item, and not about its parallel case. That is exactly our claim.

Proofs and Implications

First, let us bring evidence that Rabbi Ishmael in fact disagrees with this principle. When we examine the exposition quoted above, we see that it serves as a source for the interpretation that “eye for eye” means monetary compensation. Does Rabbi Ishmael agree with that? In two parallel midrashim we find expositions in Rabbi Ishmael’s name that derive this from a different source:⁵

“‘Eye for eye’ means money. For Rabbi Ishmael used to say: ‘One who strikes an animal shall make restitution, and one who strikes a human shall be put to death’ (Leviticus 24:21). Scripture compares damage caused to a person with damage caused to an animal: just as damage to an animal is remedied through payment, so too damage to a person is remedied through payment.”

If so, Rabbi Ishmael does not seem to derive this by using the principle of “a matter that departed from the general category to teach about a parallel case.” It is entirely possible that this stems from the fact that he does not accept this principle, as we suggested above.

In any case, we see that there is a midrashic source for the interpretation of “eye for eye” as monetary compensation. According to Rabbi Eliezer son of Rabbi Yose the Galilean, the source is our exposition; according to Rabbi Ishmael, the source is the juxtaposition to damage to an animal.⁵ Thus, according to everyone, the Sages are not using drash arbitrarily to wrench verses away from their plain sense merely in order to adapt them to moral intuitions. Here they do so only on the basis of another exposition that supports this interpretation.

The Relationship Between the Two Principles of Departure from the General Category in the Thirty-Two Principles

We must now ask ourselves—at least according to Rabbi Eliezer son of Rabbi Yose the Galilean, who does use both of these principles—when do we apply this principle, and when do we apply the preceding one, “a matter that departed from the general category to teach about itself”? At first glance there ought to be some criterion telling us when departure from a general category reveals something about the item itself, and when about a parallel case. For that purpose, let us look a bit more closely at our exposition.

Our Exposition

Our exposition is based on a biblical phenomenon that prompts us to interpret the verses: departure from a general category. What here departs from the category, and from which category does it depart? The punishment for murder departs from the category of all punishments. The Torah teaches us that this punishment is exceptional: no kofer is taken for it. From that it follows that for other punishments kofer is taken; therefore the conclusion is that kofer is taken for bodily injury.

This departure from the general category is not of the type that we encountered in principle 24, as discussed in the essay on Parashat Pinhas. There we dealt with a case in which a specific item is explicitly listed together with the general category in the same verse. Here we are dealing with the departure from the category of a specific case that is discussed elsewhere in Scripture. As we already noted in the essay on Parashat Pinhas, this is the kind of departure from a general category that characterizes halakhic verses. This reinforces our claim above that this principle is a halakhic hermeneutical principle.

How can Rabbi Ishmael disagree with the simple logic of this derivation? If no kofer is taken for the life of a murderer, that implies that it is taken for others. He will presumably learn that the departure from the general category teaches about the category as a whole, and therefore, according to Rabbi Ishmael, it follows that we are forbidden to take kofer for any punishment whatsoever. That is precisely why he needs another source—the comparison to damage to an animal—to teach us that in the case of one who injures another person, payment is nevertheless taken.⁶

Here we can also understand when to apply this principle and when to apply the other one. This principle is a halakhic one, and therefore it applies in halakhic exposition. The other principle, “a matter that departed to teach about itself,” belongs to aggadic exposition. As we saw in the essay on Parashat Pinhas, the character of departure from a general category in aggadah is different from that found in halakhic verses. If there is a departure from a general category in descriptive verses that nonetheless has a halakhic character—that is, the specific case is written elsewhere than the general category—then it is possible that Rabbi Eliezer son of Rabbi Yose the Galilean would indeed interpret it by means of this principle, just as in halakhic exposition. That is exactly what we saw there.

An interesting conclusion emerges from this: Rabbi Eliezer son of Rabbi Yose the Galilean disagrees with Rabbi Ishmael even in the principles of halakhic exposition, and not only in principles of aggadic exposition. In his view, departure from a general category is not interpreted as teaching about the category as a whole. The specific item departs in order to teach about a parallel case.

Halakhic Implications

From Rabbi Ishmael’s exposition it follows that the “eye” for which the injurer pays is money. By contrast, from Rabbi Eliezer son of Rabbi Yose the Galilean’s exposition it follows that the payment has the status of kofer. What is the difference between these two kinds of payment?

At first glance there is a difference in the character of the payment. According to Rabbi Ishmael, this is a normal compensatory payment, like payment for damage to an animal, to which the injurer is compared. In other words, he must compensate the injured party and pay him the value of his eye. But according to Rabbi Eliezer son of Rabbi Yose the Galilean, the payment is kofer in place of the punishment that ought to have been imposed on him. On a simple reading, this means that the payment is kofer for the value of the injurer’s own eye. That is, we ought to have gouged out the injurer’s eye in exchange for the injured party’s eye, but instead we obligate him to pay the value of his own eye as kofer.

And indeed, we find Sages who disagreed on precisely this point. In the discussion in Babylonian Talmud, Bava Kamma 84a, the view of Rabbi Eliezer is cited, according to which “eye for eye” means literally an eye, not money. The Gemara rejects that reading and says that even he agrees that it means only money, but his intention is that one pays the value of the injurer’s eye, not the value of the injured party’s eye. The medieval commentators explain there, for example in Tosafot on the word “Ela,” that this approach follows directly from the idea that the payment is kofer for the eye that ought to have been taken from him as punishment.

We should recall that Rabbi Eliezer, in the two sources cited above, offers a different exposition, not based on the principle of “a matter that departed to teach about a parallel case.” At first glance, one would therefore expect him to require payment of the value of the injured party’s eye, since in his view this is not kofer. But a careful look there does indeed allow one to understand that even according to Rabbi Eliezer we are dealing here with a kind of kofer. First, we noted that when the injurer intends to put out the other person’s eye, Rabbi Eliezer holds that his eye is actually taken. If so, it is clear that there is an element of punishment imposed on the injurer. True, when the act is unintentional, he pays money, and in the plain sense of the verse this would mean the value of the injured party’s eye. But according to the Talmudic discussion before us, Rabbi Eliezer’s statements even about the intentional case also concern money and not an actual eye—not as in the two midrashim mentioned above. If so, it is reasonable that the meaning is monetary payment equal to the value of the injurer’s eye.

Thus Rabbi Eliezer indeed disagrees with the hermeneutical principle of “a matter that departed to teach about a parallel case,” and in that respect he agrees with Rabbi Ishmael. But he holds that the money at issue—at least in the intentional case—is the value of the injurer’s eye, and in that respect he disagrees with Rabbi Ishmael. It should be noted that as a matter of practical halakha we rule like Rabbi Ishmael: one pays the value of the injured party’s eye.

How Is the Law of “Eye for Eye” Fulfilled?

What we have said so far implies that according to Rabbi Eliezer and Rabbi Eliezer son of Rabbi Yose the Galilean, the punishment of “eye for eye” is fulfilled through payment of the value of the injurer’s eye. After the payment, he is regarded as one whose eye has been removed, and his sin is thereby atoned for. But according to Rabbi Ishmael’s view—which is also the practical halakha—that the payment is the value of the injured party’s eye, it is not clear how the law of “eye for eye” is fulfilled.

At first glance, these views interpret the verse to mean that one should pay the value of the injured party’s eye in place of the injured party’s eye that was damaged. However, Maimonides and other medieval authorities explain—even according to the halakha that one pays the value of the injured party’s eye—that in truth it would have been fitting to gouge out the injurer’s eye, and that is why the Torah wrote “eye for eye.”⁷ Maimonides writes as follows in Mishneh Torah, Laws of One Who Injures and Damages 1:3:

“What the Torah says, ‘As he has inflicted a blemish upon a person, so shall it be inflicted upon him,’ does not mean that we wound this person as he wounded his fellow. Rather, it means that he deserves to lose a limb or be wounded as he did, and therefore he pays for his damage. And Scripture says, ‘You shall accept no ransom for the life of a murderer’ (Numbers 35:31). It is only for a murderer that there is no kofer, but for loss of limbs or bodily injuries there is kofer.”

Maimonides understands that even according to the practical halakha, the first occurrence of the word “eye” in the Torah’s formulation refers to the injurer’s eye. Presumably he interprets payment of the value of the injured party’s eye as rectifying the transgression—just as restoration of stolen property rectifies the prohibition of theft—and thereby rendering unnecessary the punishment of taking the injurer’s eye.⁸ This is a different mode of kofer.

And indeed, Maimonides rules here as practical halakha that the injurer pays the value of the injured party’s eye. But at the same time, as the reason why the liability is specifically monetary, he cites our exposition: no kofer is taken for the life of a murderer, but kofer is taken for one who injures principal limbs. That is, he does understand the payment as a kind of kofer in place of the punishment due to the injurer, even though he rules that the injurer pays the value of the injured party’s eye. Maimonides’ words point to exactly the understanding we proposed above.

The practical implication would arise when the value of the eye cannot be collected. According to our proposal regarding Maimonides’ view, in such a case there would be room to obligate the court to remove the injurer’s eye, exactly as in Rabbi Eliezer’s opinion, which sees the payment as the value of the injurer’s eye. By contrast, if we interpret Rabbi Ishmael’s view in its simple sense—that the payment is ordinary compensation for the eye—then when there is no possibility of collecting the money, we simply leave it as a debt on the injurer. On this approach there is no room at all to think of removing the injurer’s eye.

B. Peshat and Drash

Introduction

In light of the foregoing, the question of the relationship between peshat (plain sense) and drash (midrashic interpretation)⁹ becomes even sharper: if the Torah truly means that the injurer should pay money, and not that his eye should literally be taken out, why does it write “eye for eye” instead of stating more precisely that he must pay money? We should note that elsewhere the Torah does explicitly say that the matter concerns monetary payment—”the one who kindled the fire shall surely make restitution,” and so forth. This question arises in every case in which drash takes the verse away from its plain sense: why does the Torah not write its meaning clearly, and instead leave the matter to the tools of drash?

One may formulate the question more broadly: what is the relationship between the midrashic interpretation and the peshat interpretation? In the final analysis, is the midrash not the correct interpretation of the verses? Does the peshat interpretation still have meaning even after the midrash?

The Conflict Between Peshat and Drash

Many have struggled with the question of the relationship between peshat and drash. In recent years it has once again come up for discussion, often accompanied by differing ideological tones, and at times reaching highly emotional levels.

We discussed this question briefly in the essay on Parashat Shelah, where we pointed out that the term peshat does not necessarily mean a literal interpretation. Peshat is the simple interpretation of the verse. But an interpretation may be simple not only for linguistic reasons. It may also be simple because of value considerations or other background assumptions, beyond the literal meaning of the verse in question.

Above we discussed the interpretation of the verse “eye for eye,” and we noted that the drash explaining it as money indeed accords with our moral intuitions. But in addition, we argued there that those intuitions alone cannot suffice to take the verse away from its plain sense. The interpreter’s wishes, however moral and elevated, are not by themselves a sufficient basis for interpreting verses. The interpretation must also be anchored in accepted methods of interpretation. Of course, the question of how much weight to assign to linguistic strain as against moral or a priori strain cannot be decided algorithmically.

In the essay on Parashat Shelah, we quoted statements of the Beit Yosef and the Hazon Ish, who held that it is preferable to strain the language than to strain the reasoning—that is, moral reasoning or other forms of reasoning. The question, of course, is how strained the interpretation is from a linguistic standpoint, as opposed to the degree of strain on the value-laden or a priori plane. This conflict between language and reasoning lies at the foundation of the decision regarding what the correct interpretation of the verse is, and perhaps even of the question what the simple interpretation of the verse is; and those two are probably different questions.¹⁰

Several Principal Approaches

Henshke, in his three articles “On the Relationship Between Midrash and Peshat” in Ha-Ma’ayan, Nisan and Tammuz 1977, with a short addendum in 1978, addresses this question. He presents there three principal directions for understanding this relationship. We will briefly outline the foundations of those approaches.

The Apologetic Approach

According to this approach, the plain meaning of Scripture teaches us something in the same domain with which its midrash also deals—for example, in the domain of halakha. To resolve the conflict between peshat and drash, there is no escape from saying that the drash is the true peshat. A genuine examination of Scripture will show that the midrashim of the Sages are precisely what lead us to the simple and true interpretation.

This approach was widespread in western Europe in the nineteenth century, especially among scholars who found themselves compelled to defend the lack of alignment between the Oral Torah and the Written Torah. Rabbi Jacob Zvi Mecklenburg, author of Ha-Ketav Veha-Kabbalah, is one of the most prominent representatives of this approach. In the “Essay on the Torah,” which serves as the introduction to his commentary, he writes:

“We are obligated not to be silent and not to rest until we merit understanding the teaching of the Oral Torah together with the Written Torah in complete unity, so that for us there should be no difference at all between the truth of peshat and the truth of drash.”

Similarly, Malbim, another member of the apologetic school, writes in the introduction to his commentary on Leviticus:

“My present work… contains the sign and proof… that all the words of the Oral Torah are compelled by and embedded in the plain sense of Scripture and in the depth of its language, and that the homiletical exposition alone is the simple peshat, founded according to the true and clear laws of language.”

This approach is difficult even on an a priori level, for if drash really is the simple peshat, it is not clear why the Author of the Torah did not write His intention in clearer and sharper terms. In other words, this approach treats the conflict as only apparent, whereas, as we saw above, the dilemma truly has two sides.

Already the Vilna Gaon sharply opposed this approach. Thus his student, Rabbi Menashe of Ilya, writes in the introduction to his book Binat Mikra:

“I heard from the holy mouth of the pious Gaon, our teacher Rabbi Elijah of Vilna of blessed memory, that he repeatedly explained the error of those who think that drash explains the peshat of Scripture…”

The Sages teach us in several places that “a verse never departs from its plain sense”—for example, in Babylonian Talmud, Shabbat 63a, and parallels. It thus follows from the Talmud itself that the peshat interpretation remains in place even after the drash, as an independent interpretation.¹¹

The Functionalist Approach

The second approach¹² advocates the independence of peshat alongside drash. The way it resolves the conflict is by giving up the claim that peshat teaches something on the very same plane with which drash deals. For example, in a verse over which there is halakhic midrash, the peshat interpretation will teach us something pertaining to thought or aggadah, ethics, or esoteric teaching.

Henshke rejects this approach as well, and shows that the rule “a verse never departs from its plain sense” leads to a peshat interpretation that also operates on the halakhic plane. See Babylonian Talmud, Yevamot 24b, Shabbat 63a, and elsewhere.

The Integrative Approach

The third approach, which Henshke himself proposes, combines the previous two views. Peshat does indeed operate on the halakhic level. On the other hand, peshat is not identical with the midrashic interpretation. How, then, are we to reconcile the contradiction between them? Here we must distinguish between two different situations:

1. When peshat does not contradict drash, both are simultaneously correct, and each teaches us a different halakha.
2. When peshat does contradict drash, we must create a synthesis between the two. Peshat teaches the true definition of the original halakha, whereas the halakha learned from drash teaches us how that halakha is expressed in practice, because of various constraints that do not allow us to carry out the halakha of peshat literally.¹³

There Henshke cites the words of Riaz in his Kuntres ha-Re’ayot on Sanhedrin 90a, in Sanhedrei Gedolah, vol. 5, who writes:

“The sages of the Torah said, ‘A verse never departs from its plain sense,’ meaning that although every person has permission to expound Scripture in any way he can, as they said, ‘Expound and receive reward,’ nevertheless the plain sense of Scripture is the principal meaning and it is the truth, for a verse never departs from its plain sense.”

The Dispute Between Maimonides and Nahmanides in the Second Principle

In the essay on Parashat Pekudei, and likewise on Parashat Vayetze, part III, we discussed one point in the dispute between Maimonides and Nahmanides over the second principle, a point that bears on the relationship between peshat and drash. Maimonides argues against Halakhot Gedolot, which understands the laws derived from expositions to be biblical laws: how can drash uncover what is present in the verses, when we have a tradition that “a verse never departs from its plain sense”?

In these remarks Maimonides assumes that there cannot be two true interpretations of the same text. From this he concludes that the peshat interpretation is the correct one, and that the midrashic interpretation is not really an interpretation at all, but rather an expansion of the text. See also the essays on Parashot Hayyei Sarah, Yitro, and others.

Nahmanides, by contrast, offers precisely the understanding proposed by Henshke as the meaning of the principle “a verse never departs from its plain sense.” He argues against Maimonides that there is no obstacle to having several true interpretations of the same text, whether biblical or otherwise. In his words, on p. 78 of the Frankel edition of Sefer ha-Mitzvot:

“And so it is everywhere that they interpret for them by way of parable and metaphor: they believe that both are true—the inner and the outer… They did not say that Scripture means only its plain sense. Rather, we possess its midrash alongside its plain sense, and it does not depart from either one of them. The verse can bear all of it, and both are true.”

Thus, Maimonides would seem to follow the path of the apologetic interpreters, who assumed that every verse has only one true interpretation. True, he does not identify peshat with drash, but he claims that drash is not an interpretation of Scripture at all, only an expansion of it. Nahmanides, by contrast, holds that both interpretations exist in parallel, and both are true.¹⁴

Application to Kofer for Principal Limbs

One of the examples Henshke brings, in his second article there, to illustrate his claim is the exposition “eye for eye” as monetary compensation.

As we explained above, the basic legal definition of the liability of one who injures another’s eye is that the injurer’s own eye should be taken out. However, by the law of kofer we take the value of his eye instead of the eye itself. Thus the essential halakha is the peshat: the eye ought to be taken out. In practice, however, there is a constraint arising from the laws of kofer, requiring us to take from the injurer kofer for his eye and not the eye itself. The drash, then, is the practical expression of the pure law.

True, we saw above that as practical halakha we rule that the injurer pays the value of the injured party’s eye, not his own. But we explained above, in Maimonides’ view, that even this payment serves to rectify the transgression and thereby prevent the injurer from becoming liable to the punishment of actually losing his eye.

At first glance, the relation between peshat and drash here is like the relation between the rationale of the law and its actual implementation. The rationale is that the offender’s eye ought to have been taken out. In practice, however, because of halakhic and moral constraints—the laws of kofer—we require payment of the value of the injured party’s eye. But according to Henshke’s proposal, both interpretations, both peshat and drash, carry halakhic significance. How can one identify such meanings in our case?

A Halakhic Implication: The Injurer’s Admission

Henshke himself proposes the following halakhic implication. Maimonides writes in Laws of One Who Injures and Damages 5:6 that one who admits having caused injury is exempt from damages, just as one who admits liability for a penal fine is exempt. Several commentators challenged Maimonides: payments for bodily injury are not a penal fine but monetary liability, so why should one who admits them be exempt?

Several later authorities explained this by saying that the underlying liability is to remove the injurer’s eye. The monetary payment is only a substitute that serves to atone for that liability. If so, the basic liability here is not monetary but corporal punishment, and in that realm a litigant’s own admission does not obligate him.¹⁵

The Connection to the Method of “Two Laws”

In the essays on Parashot Terumah and Bemidbar, we discussed Rabbi Chaim of Brisk’s method of “two laws,” and similarly Rabbi Breuer’s method of “two aspects.” Henshke’s solution to the conflict between peshat and drash is very close in its logic to those two methods. Henshke argues that there are “two laws” governing one who injures another:

1. By the law of personal injury, one who injures another should lose his own eye.
2. By the law of kofer, kofer is taken from anyone who harms another person and is not a murderer, and the removal of the eye is avoided.

The combination of the two creates a situation in which a monetary liability is imposed on the injurer by force of the second law, yet that punishment is still regarded as corporal rather than monetary by force of the first law. This unusual situation is the result of combining the two laws that govern one who injures another. The first law emerges from the peshat, that is, from the verse “eye for eye.” The second emerges from the drash, namely our exposition that no kofer is taken for the life of a murderer, but for principal limbs it is taken. Both have halakhic consequences that apply in practice, and therefore together they create the full halakhic structure.¹⁶

Footnotes