Mishpatim (Part 2) - Exodus 21:1-24:18

In Exodus 21:22-23 we read the following:

If some men are having a physical-struggle and they [unintentionally] harmed a pregnant woman and her offspring-to-be came out [as a result] but there was no tragedy from it, he [the non-husband] will CERTAINLY (doubled language) be fined, according to [the fine] imposed upon him by the woman's husband (ba'al could be husband or master), he will give according to the determination [of the judges]. But if following [that incident] a tragedy, then you will give a soul in place of a soul ("life for a life").

And the next verse is a direct quote from Hammurabi's Code of laws: "And eye for an eye, a tooth for a tooth". One could debate which ones were more extreme: in the Torah, a child striking his father (21:15) is put to death, while Hammurabi "only" had the child's hands amputated.

But let's look at this tragedy in 21:22 for a moment.

Because of the way that the Torah is written, the use of inferred unassigned pronouns can cause multiple readings of the same text. One example is "And YHVH called Moses and He/he said to Him/him...". In this case, we need to read through the entire passage to determine who is speaking to whom, and sometimes, even that doesn't provide 100% certainty, and results in a lot of interpretation.

The Targumist Onkelos tried to correct this flaw in the text by adding a few words to the Aramaic interpretation as follows (his changes are in bold type):

"If men fight and they strike a pregnant woman, and her child comes out, but there is no death, there shall surely be collected as much as the woman's husband determines, He should pay it by verdict of the judges. But if a death is involved, then you shall impose [a punishment of] life for life.

This still doesn't make it 100% clear as to what death we are talking about.

Keep in mind that this contradicts the decrees in the Book of Numbers, where an accidental killing, where not intent was involved, would result in the person being able to flee to a "safe place" (aka "city of refuge") and remain there, safe, from the permitted honor killing by the family of the deceased.

In fact, many of the laws change in the various books of the Torah, and so Jewish sages have had to consolidate and adjust their interpretations so that there are no contradictions.

So the Targum Jonathan and the Ibn Ezra correct this further, telling us that "But if a death of the woman occurs..."

And this seems to be the standard Jewish interpretation. Rashi, quoting from the Talmud (Sanhedrin 79a) emphasizes that this is the death of the woman.

It is also important to note that abortion is not considered a sin in Judaism, as it is in Christianity, and this view of the text is the classical demonstration of that difference.

However, if you view the classical Christian commentaries, Albert Barnes, Adam Clark, and others, they tell us that this means the mother or the child. John Gill also holds that view, but at least admits that there is a view within Judaism that it only refers to the mother.

There is also one more point that I want to add before closing.

What is a "tragedy" (ason - אסון)?

We traditionally read this as meaning that someone was killed. But that meaning isn't entirely clear.

In Genesis 42:4 (the only other place in the Tanach where אסון appears), we read that Jacob would NOT send Benjamin along with his brothers to Egypt, lest אסון fall upon him.

It could be any type of harm, not just death, which might explain the verse that follows "life for life":

An eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot, a cut for a cut, a bruise for a bruise.

It is still not clear about whom this verse is speaking. Judaism holds that it's about the mother while Christianity holds that it also includes the prematurely born child.

But what both sides seem to ignore is that this very decree is invalidated in the Book of Numbers, where a more fair form of judgement is given.