Fact-Checking: Exodus 21:18-19, 22

I'm starting this thread again while finishing the Mendel Beilis trial transcript translation, which I will post when ready.   You were supposed to read Exodus 21:18-19 and 22 to go with this lesson.  Here’s what they say.

When men struggle and one strikes the other with a stone or his fist and he doesn’t die and falls on his bed

If he gets up and can walk around in public with his staff the striker is innocent but he shall give his lying down and absolutely cure him.

When two men fight and strike a pregnant woman and she has a miscarriage that there be no disaster he must be fined however much the husband of the woman demands and it shall be given in judgment.
I want you to look at verse 22 first because this is the first clue that “an eye for an eye” doesn’t mean A doing to B what B did to A.  That’s called lex talionis, by the way, meaning the law of equal retaliation.

So two men are fighting and one hits a pregnant woman and she has a miscarriage.  Stop right there.

Now if Jewish law had LT, the rest of the verse should read that the woman hits the man who hit her so he has a miscarriage.  What’s that you say?  It’s a daft idea?  Men can’t have miscarriages?  Well, then, there’s something wrong with the idea that the Bible requires LT.

That’s the first urban legend I’m going to destroy.

Now look at the rest of the verse.  “He must be fined.”  There’s no other option.  He has to pay money.  How much?  “However much the husband demands.”

Now let’s look at verses 18 and 19.  They say something different.  “If he falls on his bed.”  That means A hit B and B was disabled.  “If he gets up and walks around publicly with his staff,” means the disability is temporary.  “He shall give his lying down.”  A has to pay lost wages.  “And absolutely cure him.”  A has to pay the doctor bills.

So even if B could do back what A did to him, B is NOT ALLOWED TO RETALIATE identically to what A did to him.  A must spend money so that B can live through the disability and also for treatment to shorten the period of disability.

In American law this money is called “damages.”  There is a complete book of Jewish law with the name “Damages” which includes the rules about this sort of thing.  It’s in the Mishnah. 

Now, how do I know that “his lying down” means lost wages?  Jews for decades or centuries asked that question because Torah is the book of Jewish law.  In particular, these verses come from a part of Exodus that Jews refer to as Mishpatim, “Judgments.”  When Jews tried to run their culture by these judgments, they had the same question you just asked.  And the answer, which was documented in Mishnah “Damages” was, “his lying down” means lost wages.

Actually, they had probably been running their culture this way for a long time.  There’s an old saying from paleontology that applies to cultures just as much as it does to fossils: natura non facit saltus.  Nature makes no leaps.  We don’t have to have every fossil to know that a given fossil had a long line of ancestors behind it, all the way back to half a billion years after Earth coalesced, when life forms didn’t leave fossils.

When something is written down, it has a long history behind it, all the way back before writing existed in that culture, to the first point when that culture began to coalesce with its own customs.  It’s entirely possible that the ancestors of the Jews had a system of “damages” long before the Exodus – it’s even possible that humanity had the same thing before writing existed.  Because if you can’t make a man pregnant so a woman can make him miscarry, there has to be some way to appease the husband of the woman who miscarried. 

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