This time things are a bit reversed. A and B are fighting, B’s wife comes and grabs A in a very nasty place.You know women don’t have that nasty place. You know that no matter how much damage B’s wife has caused, A cannot retaliate equally.
But it says to strike off her hand. How is that fair? How is that Equal Protection?The rabbis hated to admit it, but they also found a way to reconcile things. Two ways, in fact.
One is that the end of the verse is lo tachos eyneycha, your eye shall not be pitiful. There is another verse with this same set of words, Deuteronomy 19:21. And it’s a two-fer. First, it says “your eye shall not be pitiful,” and then it repeats that old formula from Exodus and Leviticus with tachat. And what is it about? Two men who have a quarrel. The rules are that when men have a quarrel, you bring them before the court. It starts back with Deuteronomy 19:16 where one person testifies falsely against another, and it says the judges look into the quarrel carefully and decide how the case should go.How does that affect the woman who grabbed the man? The rabbis said, there was a fight and nobody brought A and B to court. There was no court to intervene, or no people brought A and B to court because they ignored what was going on. The only person willing to try to stop the fight, was B’s wife. All right, she didn’t do it in such a nice way, but she did it. The rabbis said, B’s wife was an agent of the court and agents of the court cannot be punished for the effects of carrying out the court’s business. We’re not going to cut off her hand, we are going to “have one law” and fine her for what she did.
I’m going to bring up this same “your eye…” in another context before too much longer, but let’s see how the first Deuteronomy verse helps the rabbis in two ways.When a woman grabs that nasty place, two things happen. One is it causes pain. You guys all know that, right? The other is that it’s embarrassing.
We have been talking all this time about something American law calls “battery.” A battery, in American law, is a harmful or unwanted touching of one person by another. In Jewish law, it’s physical contact which can result in injury but doesn’t need to. Originally, we had the requirement to pay doctor bills and lost wages resulting from an actual injury. Now we have three other possible kinds of damages:pain, which is how much money a person would accept to allow being put through a given degree of pain;
embarrassment, which depends on one’s social status;and something called loss in value which I will discuss later, but it goes with the verses in Exodus 21 that I skipped.
The classic case is a man who snatched a woman’s covering off her head. The court ordered him to pay damages to her for embarrassment. He thought he shouldn’t owe her anything because of her low social status. He had a friend break a jug of oil when she was walking in the marketplace, and she ran over, took off her head covering, and scooped up oil in her hand so it wouldn’t be wasted (that’s a concept called bal tashchit which I will discuss much later). He took her to court as evidence that he shouldn’t have to pay for something that she was perfectly willing to do to herself. The rabbis said, she shouldn’t have done it, but she had the right because she did it to herself. You didn’t have the right, and you have to pay the damages.Jewish law recognizes that touching somebody without their agreement is wrong, whether it causes an injury or not. That is also “having one law.” And now to round up the concepts I have been discussing.
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