The Import of Lex Talionis in the Story of the Blasphemer

What Is the Lex Talionis Doing in Leviticus 21–24?

Much of Parashat Emor (Lev 21–24) concerns rules for priests and their families, designed to avoid the pollution of the holy. Different specifications exist to prevent contamination of holy people (the priests), of holy space (the sanctuary), and even of holy time in the list of holidays and festivals. This focus on holiness and pollution makes the short concluding section, an anecdote about the stoning of a blasphemer, seem curiously out of place.

Even more out of place is the reiteration of the law of retaliative justice (lex talionis) that follows God’s pronouncement of the death penalty for the blasphemer:^[1]

^{ויקרא כד:יט} וְאִ֕ישׁ כִּֽי־יִתֵּ֥ן מ֖וּם בַּעֲמִית֑וֹ כַּאֲשֶׁ֣ר עָשָׂ֔ה כֵּ֖ן יֵעָ֥שֶׂה לּֽוֹ: ^כד:כ שֶׁ֚בֶר תַּ֣חַת שֶׁ֔בֶר עַ֚יִן תַּ֣חַת עַ֔יִן שֵׁ֖ן תַּ֣חַת שֵׁ֑ן כַּאֲשֶׁ֨ר יִתֵּ֥ן מוּם֙ בָּֽאָדָ֔ם כֵּ֖ן יִנָּ֥תֶן בּֽוֹ:

^{Lev 24:19} If anyone maims his fellow, as he has done so shall it be done to him: ^24:20 fracture for fracture, eye for eye, tooth for tooth. The injury he inflicted on another shall be inflicted on him.

Code of Hammurabi’s Distinction between Classes

The lex talionis is also familiar from other legal collections in the ancient Near East, most famously in the Law Collection of Hammurabi (LH). Its application there is not the same as in the Bible. LH, for example, outlines a three-tiered law of what to do to a person who blinds the eye of another (LH 196-199), depending on who the blinded person is:

• If an awilum (landowner) blinds the eye of another awilum of the same class, they shall blind his eye. If he breaks the bone of an awilum, they shall break his bone.
• If he blinds the eye of a mushkenum (commoner) or breaks the bone of a mushkenum, he shall weigh out one mina (60 shekels) of silver.
• If he blinds the eye of an awilum’s slave or breaks the bone of an awilum’s slave, he shall weigh out half of his value.

LH distinguishes between classes: physical damage inflicted on a member of the propertied class warranted more severe, and physically equivalent, retaliation. Physical damage against lower classes required only monetary compensation. Leviticus doesn’t distinguish between classes when it comes to lex talionis.^[2]

A Narrative in Leviticus

That lex talionis appears as part of a story in Leviticus 24, and not imbedded within a legal collection, is itself unusual. The book of Leviticus is not known for its narrative episodes – in fact, it contains only two, both short anecdotes that seem to be inserted for the purpose of elaborating on the surrounding legal material. The first is the story of the death of Nadab and Abihu in Lev 10, which caps the account of the dedication of the Tabernacle,^[3] and the second is our story of the blasphemer (Lev 24:10-22), which is followed by the version of the talion cited above.

The Stoning of the Blasphemer

^{ויקרא כד:י} וַיֵּצֵא֙ בֶּן־אִשָּׁ֣ה יִשְׂרְאֵלִ֔ית וְהוּא֙ בֶּן אִ֣ישׁ מִצְרִ֔י בְּת֖וֹךְ בְּנֵ֣י יִשְׂרָאֵ֑ל וַיִּנָּצוּ֙ בַּֽמַּחֲנֶ֔ה בֶּ֚ן הַיִּשְׂרְאֵלִ֔ית וְאִ֖ישׁ הַיִּשְׂרְאֵלִֽי: ^כד:יא וַ֠יִּקֹּב בֶּן הָֽאִשָּׁ֨ה הַיִּשְׂרְאֵלִ֤ית אֶת הַשֵּׁם֙ וַיְקַלֵּ֔ל וַיָּבִ֥יאוּ אֹת֖וֹ אֶל מֹשֶׁ֑ה וְשֵׁ֥ם אִמּ֛וֹ שְׁלֹמִ֥ית בַּת דִּבְרִ֖י לְמַטֵּה דָֽן: ^כד:יב וַיַּנִּיחֻ֖הוּ בַּמִּשְׁמָ֑ר לִפְרֹ֥שׁ לָהֶ֖ם עַל־פִּ֥י יְ-הֹוָֽה:

^{Lev 24:10} There came out the son of an Israelite woman who was the son of an Egyptian man in the midst of the children of Israel. And they fought in the camp, the son of the Israelite woman and an Israelite man. ^24:11 The son of the Israelite woman pronounced the name and he cursed. And they brought him to Moses. And the name of his mother was Shelomith daughter of Dibri of the tribe of Dan. ^24:12 And they placed him in the guarding-place until the decision of YHWH would be made clear to them.

First, what is the story of a half-Israelite blasphemer doing in a section of laws about polluting holy people, spaces, and times? Second, why is the lex talionis appended to this story? This narrative has nothing to do with fractures, eyes, or teeth,^[4] and its focus on retaliative justice for physical injury, not ritual infractions, seems out of place here, considering the nature of the offense and the punishment:

^{ויקרא כד:יג} וַיְדַבֵּ֥ר יְ-הֹוָ֖ה אֶל מֹשֶׁ֥ה לֵּאמֹֽר: ^כד:יד הוֹצֵ֣א אֶת הַֽמְקַלֵּ֗ל אֶל מִחוּץ֙ לַֽמַּחֲנֶ֔ה וְסָמְכ֧וּ כָֽל הַשֹּׁמְעִ֛ים אֶת יְדֵיהֶ֖ם עַל רֹאשׁ֑וֹ וְרָגְמ֥וּ אֹת֖וֹ כָּל הָעֵדָֽה:

^{Lev 24:13} And YHWH spoke to Moses saying, ^24:14 “Bring out the curser outside of the camp and all who heard him will lean their hands upon his head, and the whole community will stone him.”

Lex talionis is not applied to the blasphemer; he is not “blasphemed” as a punishment, but executed! This appears to have no connection with the talion. The key, I believe, is the offender’s identity as a partial Israelite.

The Popular Theology of the Holiness Collection

The Holiness Collection (HC) is the latest of all of the law collections of the Torah, and is so-called because of its emphasis on the need for Israel to be holy (e.g. Lev 19:2, 20:7, 26). The HC expands the Priestly author’s sense of holiness beyond the Israelite priests to include the whole community of Israel; although the priests are especially consecrated and subject to further strictures of maintaining holiness, all Israel is to maintain holiness in the community by following God’s laws. HC also expands P’s concept of impurity beyond P’s emphasis on ritual to include moral categories as well, as can be seen in Leviticus 19 and its ethical focus.^[5]

Responsibilities of Previous Inhabitants of the Land

In HC the impurity that results from sin defiles the land of Israel itself.^[6] Lev 18:24–30 describe the land “vomiting out” the Canaanite inhabitants for their defiling pollutions. Thus it would seem that these previous inhabitants, who had not known God’s laws, were still exiled from the land for having violated those laws.

But to which laws is HC referring? Surely the Canaanites couldn’t have been expected to celebrate Israelite holidays, and worship in accordance with Israelite regulations, that had not yet been made known, by a God whom they did not know?

Lev 18 begins by addressing Israelites and enumerating the sexual sins by which they should not defile themselves, ending with the statement that it was because of these sins the Canaanites were vomited from the land. Thus, it seems that YHWH expected a certain amount of sexual morality/purity even of those “who did not know him.”

Responsibilities of Non-Israelites Living among Israelites

What about non-Israelites who live with Israelites? According to a number of verses in the HC, including the opening chapter, the laws here are addressed to כל נפש… באזרח ובגר (“all people; citizens and strangers”; Lev 17:15), a concept appearing in one form or another in Lev 17:8, 10, 12, 13, and 15.^[7] For example, v. 8 includes the stranger in the law forbidding anyone from offering a sacrifice outside the Tabernacle, v. 10 includes them in the prohibition to consume blood, etc.

Nevertheless, many laws in HC—especially its positive injunctions—seem to be addressed only to Israelites (some just to priests, and some to all Israel). So—which of the laws applied to Israelites only, and which to non-Israelites as well as Israelites?

One Law for the Community: What about a Half-Israelite?

It is the blasphemer’s uncertain citizenship status that motivates the law in Leviticus 24. This anecdote is trying to answer an obvious question: Is a half-Israelite subject to the same laws as a full-Israelite? The answer here is: absolutely.

^{ויקרא כד:טו} וְאֶל בְּנֵ֥י יִשְׂרָאֵ֖ל תְּדַבֵּ֣ר לֵאמֹ֑ר אִ֥ישׁ אִ֛ישׁ כִּֽי יְקַלֵּ֥ל אֱלֹהָ֖יו וְנָשָׂ֥א חֶטְאֽוֹ: ^כד:טז וְנֹקֵ֤ב שֵׁם־יְ-הֹוָה֙ מ֣וֹת יוּמָ֔ת רָג֥וֹם יִרְגְּמוּ ב֖וֹ כָּל הָעֵדָ֑ה כַּגֵּר֙ כָּֽאֶזְרָ֔ח בְּנָקְבוֹ־שֵׁ֖ם יוּמָֽת:

^{Lev 24:15} And to the children of Israel you will speak, saying: any man who will curse his God will bear his sin. ^24:16 And one who will pierce the name of YHWH will surely be put to death. The whole community will surely stone him, like stranger and like citizen; when he pierces the name he will die.”

The overriding thesis of the HC is one law for all in the community—all living within the community must avoid violating that collection’s proscriptions. This means that unlike the Law Collection of Hammurabi and other ancient Near Eastern law collections, which distinguish criminal and civil punishments for different classes of people, the HC posits one set of prohibitions for all who live in the Israelite community – in the wilderness, as depicted here, or in the land of Israel later on.

Including the Half-Israelite in the Community

Leviticus 23-24 detail some of Israel’s ritual requirements, including festivals and Tabernacle offerings. The section ends with a story that illustrates the contrast of worship, blasphemy. In intertwining the talion and the case of the blaspheming half-Israelite, the HC brings together several of its agendas:

• It draws responsibility for holiness outside of the priestly sphere and into the larger Israelite community in the form of obedience to God’s laws.
• It emphasizes the idea that all inhabitants of the community are subject to God’s laws (the land vomited out the previous inhabitants who did not maintain holiness and conform to God’s laws).
• It highlights the concept that justice is to be meted out equally to all members of the community, regardless of social or ethnic status.

A half-Israelite^[8] blasphemer is thus subject to the law of Israel, including the prohibition against cursing the God of Israel.

The Connection between the Talion and the Blasphemer

The talionic formula here can’t refer to broken bones, eyes, or teeth; the infraction is about cursing the Name. Why cite the talion in a case of blasphemy? Its meaning is clearly about a punishment fitting the crime, measure for measure; but a literal understanding of its citation here doesn’t fit the idea of stoning a blasphemer. The key is understanding that the blasphemer is being treated as an Israelite, regardless of his parentage; like an Israelite; a half-Israelite will also be stoned to death for breaking one of God’s laws. And thus, the talion becomes a statement about equality of all before the law – for better or for worse. On the heels of a series of laws and regulations, some of which seem to apply to all members of the community, others to just Israelites (or even just priests), the purpose of this anecdote, and the talion that follows it, is to work out boundaries and responsibilities of community members.

In the HC, lex talionis has become a proverbial expression intended to level the playing field, to enforce the revolutionary idea that there should be one law for all members of the community, regardless of class distinctions (again, with the exception of non-Israelite slaves).^[9] While certain regulations – specifically, obligations having to do with Israelite holidays or rituals – may seem to apply only to some (i.e. Israelites, or priests), that does not excuse non-Israelites from being held accountable for breaking God’s laws.^[10]

Invoking the Talion Means Equal Treatment Under the Law

Leviticus 21–24 continues HC’s focus on the importance of maintaining holiness among the people and avoidance of polluting the land. All who lived in the community were responsible for maintaining holiness, and once the community was in the land of Israel, the land itself was to remain holy and non-polluted. The talion in the Law of Hammurabi applied among social equals only, with different consequences for non-equals. HC has appropriated the talion here to apply to all who live in the Israelite community as a statement that all are equal in terms of being subject to God’s laws.

Analyzing the passage within its context allows us to understand the application of lex talionis here as a general principle, rather than as a physical act of retaliative justice. In invoking the talion here in this way, HC fosters and advocates for an important advance in ancient jurisprudence: the idea of all people being equal under God.