Pastor Whitaker gave one of his best sermons ever today at ECC on self-defence and dealing with one's enemies. Oddly enough, there was a bit of connection to the paper I've been working on this past few days, "Buyer-Option Contracts Restored: Renegotiation, Inefficient Threats, and the Hold-Up Problem," which Professor Lyon and I recently had accepted at The Journal of Law, Economics, and Organization.
Consider the two main "eye for an eye" passages. Leviticus 24: 19-20 says,
And if a man cause a
blemish in his neighbour; as he
hath done, so shall it be done to
him;
Breach for breach, eye for
eye, tooth for tooth: as he hath
caused a blemish in a man, so
shall it be done to him again.
Matthew 5:38-40 (part of the Sermon on the Mount) says,
Ye have heard that it hath
been said, An eye for an eye,
and a tooth for a tooth:
But I say unto you, That ye
resist not evil: but whosoever
shall smite thee on thy right
cheek, turn to him the other
also.
And if any man will sue thee
at the law, and take away thy
coat, let him have thy cloke also.
I won't comment on the main difficulty here now, except to say that a resolution is that
Jesus is telling us not to retaliate, only to prevent injustice, and to treat our own
cases with more diffidence than we treat offenses against others. Jesus is not advising
us to refrain from action when Mr. A does evil to Mr. B. What I will remark on here,
though, is the connection with my paper on incomplete contracts. We make the following
observation (not original with us) on the classic case of {\it Pile
v. Pedrick, } 31 A. 646 (Pa. 1895).
Pedrick built a factory wall with a
foundation that mistakenly enroached onto Pile's land by about an inch.
This is a case of property law, not contract law, so the common law does
allow a court to require specific performance.
The court offered Pile a choice of either money damages (which would be
small) or a court order that Pedrick remove the wall (which would be
very expensive for Pedrick). Pile asked for the court order. Pile's
threat to enforce the court order was then credible; once he had made
his choice, Pile no longer had the option of money damages. He did have
the option to sell Pedrick the court order, however, and no doubt that
is what he did.
When Leviticus says "an eye for an eye", it is not being severe, but rather is limiting
the punishment to the magnitude of the injury. Presumably the offender's eye was not
actually put out so long as he paid the victim enough for the victim not to demand the
punishment be inflicted, just as in Pile v. Pedrick we do not think the
enroaching building was actually torn down. Leviticus, in fact, is rather mild.
Nowadays, if I put out someone's eye, I will be liable not just for damages equal to the
value of the eye, but also for criminal punishment.
A good discussion of the issue is at
Torat Emet:
The biblical concept of "an eye for an eye" is well known. The way it is frequently
understood is that one is punished with exactly what one inflicts on another. Therefore,
someone who damages another's eye will have his eye damaged. Someone who knocks out
another's tooth will have his tooth knocked out. However, rabbinic literature has never
understood it this way. The Mechilta on Exodus 21:24 and the Talmud in Ketuvot 32b and
Bava Kamma 83b understand "an eye for an eye" as meaning that someone who damage's an
eye must pay the value of that eye.
The Torat Emet essay points out
Numbers 35:31, " Moreover ye shall take no
satisfaction for the life of a
murderer, which is guilty of
death: but he shall be surely put
to death." Apparently, settling out of court ("satisfaction") was common, and so was
specifically banned in cases of murder.
It is an interesting question as to how severe punishments are in modern American compared to ancient Israel. The greatest difficulty is that in both places, the punishments written in the law are not necessarily those that are actually inflicted. Exodus 22:20 says, " He that sacrificeth unto any god, save unto the LORD only, he shall be utterly destroyed." It is highly doubtful that this commonly happened. It is interesting, too, that the great majority of the commands in the Torah have no punishment specified (which kind do have punishments specified?--sexual and religious crimes mainly?). An exception is Exodus 22:1-2.
If a man shall
steal an ox, or a sheep, and kill
it, or sell it; he shall restore five
oxen for an ox, and four sheep
for a sheep.
If a thief be found breaking
up, and be smitten that he die,
there shall no blood be shed for
him.
The official punishment (the four- or fivefold compensation) is a much smaller
punishment than we formally have for theft. Nowadays, the de jure punishment is time in
jail, which ordinarily is much greater in value than the amount stolen. The de facto
punishment, on the other hand, is arrest and a bit of bother, since we don't jail first
offenders, or even put them on trial, as far as I can see. It would be interesting to
see a schedule of the true penalties for various crimes in America.
What seems likely is that minor crimes such as theft were punished more lightly in Israel but major crimes such as murder were punished more heavily. Why should that be? Perhaps because the intelligentsia are now more horrified by minor crimes (which, too, are lower-class crimes) and are more horrified by large punishments than by large crimes, the crimes being more distant.
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