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If a man strikes another and kills him, he shall surely be killed. The
one who strikes an animal and kills it shall make restitution, a life
for2 a life. If a man maims his fellow, as he has done so shall it be
done to him, a fracture for a fracture, an eye for an eye, a tooth for
a tooth, as he maims a man so shall it be done to him. The one who
strikes an animal [and kills it] shall make restitution, and the one who
strikes a man [and kills him] shall be killed. You shall have one law
for both resident alien and citizen, for I am the Lord your God.

In order to understand Lev 24:17“21, we must analyze its literary form.
First of all, the homicide laws in Lev 24:17“21 are embedded in an oracular
response to a case of blasphemy, recounted in 24:10“12. The juxtaposition
of blasphemy and deadly assault can be explained on two levels, concep-
tual and formal/linguistic. Both are to be applied to the Israelite citizen and
to the alien. Both are capital cases whose statutes contain the formal sen-
tence of tmwy twm. Thus, there are two linkages, a conceptual and a formal/
linguistic.
Second, the oracular response in this episode is similar to the response
in two of the three other episodes of cases brought to Moses whose law is
unknown “ Num 9:6“14 and 27:1“11, but not 15:32“36 “ in that the ruling
issued is more comprehensive than one solely addressing the case that initially
required a response.3 Num 9:6“14 deals with those who were impure at the
time of the paschal offering. The response contains the law pertaining to that
particular case, as well as the law for those who were ritually pure at the time
of the feast who refused to take part. Num 27:1“11 treats the question of
the inheritance of the daughters of Zelophehad. The response not only deals
with them but also provides a complete list of inheritors in order of priority:
son, daughter, brother, paternal uncle, nearest clan relative. In contrast, the
law in the fourth episode, Num 15:32“36, is con¬ned to the case of a man
gathering wood on the Sabbath.
These four ad hoc legal situations present adjustments to covenantal law.
Moses is unable to decide them on the basis of given covenantal law and

2 The meaning of tjt in this verse and in the following verses is “in place of, in lieu of, instead of,”

expressing exchange (e.g., Gen 22:13; cf. Ronald J. Williams, Hebrew Syntax: An Outline [2d
edition; Toronto: University of Toronto Press, 1976], 59, but compare Waltke and O™Connor™s
understanding of this as an abstract locational use, An Introduction to Biblical Hebrew Syntax,
220). This preposition is used in Deut 22:29 with a noun clause, hn[ r`a tjt, “in lieu of having
forced her.”
3 Fishbane, Biblical Interpretation in Ancient Israel, 103. The oracular response is an H frame-

work for P material. Cf. Knohl, The Sanctuary of Silence, 121.
156 HOMICIDE IN THE BIBLICAL WORLD


must receive new information.4 What judicial dif¬culty underlies the case in
Leviticus 24? The description provides only a few details: During the course
of a ¬ght with an Israelite, a person of mixed parentage blasphemed the
Israelite God, YHWH. The restatement of the case in casuistic form presents
the rule that all who blaspheme YHWH are subject to the jurisdiction of
Israelite law without regard to the ethnic status of the offender. Blaspheming
YHWH is punishable whether the offender is Israelite without question or
is of mixed parentage whose covenantal status is unclear. The ruling in this
case is that the law is to be applied to the citizen and alien alike.5 The point
of the law on assault being appended to the blasphemy law is that penalties
for killing an animal and for killing a person also apply to citizen and alien
alike. (We can extrapolate from this statement the recognition that biblical
differs from nonbiblical law on penalties for killing.)
The emphasis on the same law applying to citizen and alien is integral to
the passage whether or not the assault law was original to the passage. The
start and conclusion of this pericope contain similar wording: Lev 24:17,
vÉn t\f vÉo hRsm¢π htZ’ vÉo hGrW tŸ ˜y t˜m !—1 vÉoAlŁ hD‚ yH vy6¨; and 24:21,
. m
tŸ !—1 hGrW hRsm¢π htZi hGrW. This phenomenon, denoted by the technical
.
mWy
term Wiederaufname, often indicates interpolated material.6 Although this
phenomenon is present in Lev 24:17“21, this does not eliminate an organic
connection between the attached material and that to which it is attached.
There is an indistinct boundary here between authorial and scribal activities,
if indeed authorship and scribal transmission are separate at all.7
The substance of the section dealing directly with homicide is re¬‚ected
in its literary structure (Lev 24:17“21):
a. (v. 17) tmwy twm !da `pn lk hky yk `yaw
b. (v. 18) `pn tjt `pn hnml`y hmhb `pn hkmw
c. (v. 19) wl h`[y @k h`[ r`ak wtym[b !wm @ty yk `yaw
d. (v. 20a) @` tjt @` @y[ tjt @y[ rb` tjt rb`
c . (v. 20b) wb @tny @k !dab !wm @ty r`ak

4 Lev 24:10“23 does not take into account the principle that a person may only be punished
for conduct de¬ned as criminal before he acted, a concept termed legality in American law. Cf.
Dressler, Understanding Criminal Law, 29.
5 The equality of alien and citizen is a major theme of H (Knohl, The Sanctuary of Silence, 21).

Cf. Lev 17:8, 10, 12, 13, 15.
6 The signi¬cance of Wiederaufnahme for literary criticism is discussed by Curt Kuhl, “Die

˜Wiederaufnahme™ “ ein literarkritische Prinzip?” ZAW 65 (1952), 1“11. An alternate use of
the term is discussed in Shemaryahu Talmon and Michael Fishbane, “Issues in the Ordering
of Selected Chapters of Ezekiel” [Hebrew], Tarbiz 42 (1972“1973), 35“38 (a translation of
this article is “The Structuring of Biblical Books: Studies in the Book of Ezekiel,” Annual
of the Swedish Theological Institute in Jerusalem 10 [1976], 143“146); and Talmon, “The
Presentation of Synchroneity and Simultaneity in Biblical Narrative,” in Literary Studies in the
Hebrew Bible: Form and Content (Jerusalem: Magnes Press, 1993), 112“133.
7 Fishbane, Biblical Interpretation in Ancient Israel, 86.
157
LEX TALIONIS


b . (v. 21a) hnml`y hmhb hkmw
a . (v. 21b) tmwy !da hkmw
a. If a man strikes another and kills him, he shall surely be killed.
b. The one who strikes an animal and kills it shall make restitution, a
life for a life.
c. If a man maims his fellow, as he has done so shall it be done to
him,
d. a fracture for a fracture, an eye for an eye, a tooth for a tooth,
c . as he maims a man so shall it be done to him.
b . The one who strikes an animal (and kills it) shall make restitution,
a . and the one who strikes a man and kills him shall be killed.

The chiastic structure of the passage reveals its trifurcated content: 1) Lex
talionis applied to nonfatal bodily injuries; 2) the differentiation between the
penalty for killing a man and for killing an animal; and 3) the equivalence
of lex talionis applied to the death of an animal, in the form `pn tjt `pn, and
hnml`y, compensation.
The problem of lex talionis is revealed most acutely in this passage. The
statute makes a clear distinction between the remedy for the killing of a hu-
man being and that for killing of an animal “ execution in contrast to com-
pensation. What is striking is that the principle enunciated for the killing of
an animal is “a life for a life,” a statement usually understood as forbidding
compensatory payments, but the remedy for killing an animal is compen-
sation. The penalty for slaying a human being is death, but lex talionis is
not used as the reason. Moreover, the principle of punishment for nonfatal
bodily injury is “a fracture for a fracture, an eye for an eye, a tooth for a
tooth.” At ¬rst glance, it would appear that there is a relationship between
“a life for a life” and “a fracture for a fracture, an eye for an eye, a tooth for
a tooth” simply on the basis of linguistic similarity: Both are formulations
of lex talionis and both make an equivalence between injuries. However, the
¬rst is applied to the death of an animal, the second to the nonfatal injury of
a human being, and neither is applied to the death of a human being. What,
then, is the signi¬cance of lex talionis?
`
First of all, the polarity between retaliation and compensation vis-a-vis a
fatality is not as complete as may initially be thought. Certainly, in Leviticus,
lex talionis is set in a context in which the authors felt that talionic punish-
ment involved compensation.8 Secondly, the remedy for killing an animal is
that the animal must be replaced in kind “ the object lost is replaced by an
object of the same species, not in money.9 There is a cognitive distinction be-
tween repaying in kind and paying in currency. Lex talionis, then, expresses

8 Exod21:23; Lev 24:18.
9 Daube,“Lex Talionis,” 135“139. The verb !l` means “to restore,” to be distinguished from
paying a pecuniary mulct (Exod 21:36, 37; 22:2, 3, 4, 5, 6, 8, 10, 11, 12, 13, 14). With one
158 HOMICIDE IN THE BIBLICAL WORLD


a principle of legal symmetry, of repaying in kind.10 Those guilty of physical
assault are made to suffer the exact harm they in¬‚icted on others. This is in
sharp contrast to ¬nes, a ¬xed amount to be paid in particular circumstances.
In the case of killing an animal, lex talionis means replacing the particular
animal killed instead of paying a ¬ne. In the case of killing a person, lex
talionis means the killer is killed. The act of punishment must be similar to
the offense in the aspects in which the original act was wrong.11 In a sense, it
is a reversal of roles: The original agent of harm becomes the recipient of the
same action of the type that constituted the offense. The killing of animals
is treated in the same way as the killing of humans.
Lex talionis appears in two other statutes, Deut 19:16“21 and Exod
21:23b“25. In the law on false witnesses in Deut 19:16“21, lex talionis
emphasizes that the penalty applied to the false witness must be the same
penalty that would have been applied to the accused. The false witness suffers
what the victim of his lie would have suffered (or did suffer). Lex talionis
articulates a concept of equivalence.
The principle of equivalence comes across even more strongly in Exod
21:23b“25: This statute concludes in the distinctive formulation of lex talio-
nis, a contrast to the casuistic style in which these provisions commence. The
talion formula in verse 23b exhibits a different construction from the casu-
istically formulated statutes because there is no attempt to arrange the cases
in conditional clauses within a series of main and subordinate conditional


exception (Exod 21:34), wherever payment in currency is required, the verb used for “to pay”
is @tn (Exod 21:19, 22, 30, 32; 22:16).
10 Tikva Frymer-Kensky, “Tit for Tat: The Principle of Equal Retribution in Near Eastern and

Biblical Law,” BA 49 (1980), 230“234. Some have argued that the term, lex talionis, is correctly
applied only to nonfatal bodily injuries and to punishing the offender by making him subject to
the same injury as he in¬‚icted. Cf. Jackson, Essays in Jewish and Comparative Legal History,
281, n. 1; Yaron, The Laws of Eshnunna2 , 262.
11 Jeremy Waldron, “Lex Talionis,” Arizona Law Review 34 (1992), 34“35, 42“43. Lex talionis

should not be interpreted as imputing strict liability without any consideration of the intention
of the offender because it is presented as a principle of determining punishments for offenses.
It is not put forward as a principle treating accidental deaths in the same way as intentional
homicide. Some have argued that this literary structure should be isolated as a remnant of a
stage in which the intentions of a killer were not considered. Alt argues that since lex talionis
does not take into account the subjective guilt of the offender, it exacts a strict penalty based
on the external aspects of a crime (“The Origins of Israelite Law,” 135). Alt was unable to shed
light on the origin of lex talionis (“Zur Talionsformel,” in Kleine Schriften zur Geschichte des
Volkes Israel [Munich: C. H. Beck™sche Verlagsbuchhandlung, 1953 (1932)], 1.341“344). Frank
¨
Crusemann argues similarly and adds that a contemporary book of law may contain technical
terms and formulations and refer to legal institutions created hundreds of years earlier (The
Torah: Theology and Social History of Old Testament Law, 113). The presence of these ¬xed
forms in a contemporary book of law cannot invalidate its interpretation as a self-contained
lawbook of its time. However, lex talionis is not applied as anything other than a principle
of equivalence in particular cases, and there is no evidence that it would be applied as an
articulation of speci¬c punishments for injuries.
159
LEX TALIONIS


sentences. Lex talionis is meant here to be of general application “ it is not
limited to the single case, fatal injury to a pregnant woman, to which it
now applies. It mentions many injuries, none of which are fatal assault on a
pregnant woman. Indeed, the principle of talionic retribution contradicts the
statutes on injury because in a case of assault according to Exod 21:18“19,
the offender must pay compensation. Why then is a talionic formula used in
a statute on injuries not mentioned in the talionic formula? In biblical law,
principles are expressed in speci¬c terms. The talionic formula does not refer
to “a burn for a burn” as a particular punishment. Rather, it uses speci¬c
injuries to articulate equivalence as a principle of punishment.
This principle of equivalence applies to homicide in general. Execution
as the penalty is to be understood as an equivalence. The penalty is similar
to the slaying in the aspect in which the original slaying was wrong. It is a
reversal of roles: The original agent of harm, the killer, becomes the recipient
of the same action of the type, killing, that constituted the offense. This is
the principle underlying execution as the penalty for intentional homicide.
Gen 9:5“6 is an expression of lex talionis in a literary context:

5
But your own lifeblood I will require; of every beast I will require it;
of man for his fellow man, I will require human life. 6 Whoever sheds
the blood of man by man shall his blood be shed, for in his image did
God make man.

The death penalty expresses an equivalence between the offense and the man-
ner in which the remedy is carried out. The punishment is the embodiment of
lex talionis: The killer is himself killed. Other dimensions of the punishment
are also re¬‚ected in this text. Emphasis is placed on the importance of blood
as the life force of the victim: The only way that the spilling of blood can be
undone is for the blood of the offender to be spilled as punishment. More-
over, God takes a particular interest in the punishment of homicide. It is an
offense against God because the divine image is re¬‚ected in human beings,
and the elimination of homicide occupies a central place in the re-creation
of society after the Deluge.
Cuneiform law operates differently because the killer may be subject to
two radically different punishments, being forced to pay compensation or
being killed. These punishments are the means of undoing the wrong, but
not in the same way that biblical punishment operates because the biblical
punishment uses the same means in punishment as was used in the offense.
The loss is made good in cuneiform law, but not through the same action as
the offense. Rather, the cuneiform laws on homicide re¬‚ect concern with the
status of the victim and how that status affected the individual suffering the
loss and the type of loss involved.
First, the lowest status is that of slave. Although in general, the statutes
in cuneiform law collections may be divided into delicts against property
160 HOMICIDE IN THE BIBLICAL WORLD


and against persons,12 the status of slave straddles the distinction “ he is a
person who is property. Whenever a slave is injured, this is conceived as an
offense against the owner of the slave because the slave is the property of his
master. Therefore, the penalty for the death of a slave is always in terms of
property:
LL f
If a . . . strikes the slave woman of a man and causes her to lose her
fetus, he shall weigh and deliver 5 shekels of silver.
LE 23
If a man had no claim against a free man yet distrained the man™s
slave woman, detained the distrainee in his house and caused [her] to
die, he shall replace 2 slave women to the owner of the slave.
LE 55
If it gored a slave and caused [him] to die, he shall weigh out 15
shekels of silver.
LE 57
If it gored a slave and caused him to die, he shall weigh out 15 shekels
of silver.

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