Copyright © 1993 by
THE INTERPRETATION OF EXODUS 21:22-25
(LEX TALIONIS) AND ABORTION*
JOE M. SPRINKLE
W.C. Kaiser, in defending the use of OT law for formulating Christian
ethics, argues that many ethical questions of interest to the modern
Christian are not addressed in the NT, but only in the Old. "Where," he
asks, "will we obtain authoritative materials on the abortion question if the
OT is not consulted?"1
The passage most directly relevant to the abortion question according to
Kaiser is Exod 21:22-25, the case of a pregnant woman struck during a
brawl.2 Key to finding direct relevance in this passage to the abortion
question is the interpretation that, contrary to the view exemplified by most
commentators and translators,3 premature birth rather than miscarriage is
involved in the first half of this passage where there is no serious injury
(Nvsx). Only in the second case with serious injury is the death of the fetus
and/or mother contemplated, and there the lex talionis, the "law of retal-
iation," is applied' 'life for life," implying that the killing of the fetus was
regarded as taking a human "life" (wpn). This interpretation, which is
reflected in the NIV translation, implies that deliberate induced abortion
of a human fetus is murder.
Many anti-abortion Christian theologians and ethicists adopt this inter-
pretation to bolster their case against abortion.4 However, this line of
interpretation is subject to criticism on exegetical grounds. It will be my
*An earlier draft of this paper was presented at the Annual Meeting of the Evangelical
making helpful suggestions: Daniel Evearitt and Donald Williams of
College, and Michael A. Grisanti of Central Baptist Seminary. I also appreciate the fine
editorial work of Moises Silva.
1 W. C. Kaiser, Jr., Toward Old Testament Ethics (Grand Rapids: Zondervan, 1983) 34.
2 Kaiser, Ethics, 168-72.
3 Kaiser (Ethics, 170) lists
Rheims, Moffatt, and Goodspeed, which take the miscariage view. Tanakh, .NEB, REB, and
Today's English Version can be added to the list.
4 Among them: J. W. Cottrell, "Abortion and the Mosaic Law," Christianity Today 17
(March 16, 1973) 6-9; J. M. Frame, "Abortion from a Biblical Perspective," in Thou Shalt Not
Kill (ed. R. L. Ganz;
The Slaughter of the Innocents (Westchester, IL: Cornerstone, 1981) 98-101; J. J. Davis, Abortion
and the Christian (Phillipsburg, NJ: Presbyterian and Reformed, 1984) 49-52; id., Evangelical
purpose to reexamine the interpretation of this passage and reassess its
relevance to the issue of abortion.
II. Exegetical Problems in Exod 21:22-25
Any interpreter of Exod 21:22-25 should begin by confessing that this
passage is extremely difficult due to the large number of exegetical cruxes
it contains. The variety of ways in which scholars have resolved these cruxes
has resulted in a multitude of specific interpretations of the pericope as a
whole.5 The following is an interpretive translation of Exod 21:22-25 which
will facilitate a discussion of its exegetical difficulties.
(22) If men are in struggle with one another and butt a pregnant woman so that
the product of her womb [hydly] comes forth in fatal miscarriage, but there is
no further serious injury [Nvsx] to the woman, then someone (the guilty party
or a representative of the guilty parties) will be charged tort in accordance with
what the woman's husband requires of him, paying the amount for which he is
culpable (?) [Myllpb]. (23) But if there is further serious injury [Nvsx] to the
woman, then you Israelite will payout [hqqn] as the guilty party according to
the formula: "the monetary value of life in exchange for the life lost [tHt wpn
wpn], (24) value of an eye in exchange for the eye lost, the value of a tooth in
exchange for a tooth lost, value of a hand in exchange for the hand lost, the
value of a foot in exchange for the foot lost, (25) the value of injury caused by
burning in exchange for burning inflicted, the value of a wound in exchange
for a wound inflicted, the value of a stripe in exchange for stripe inflicted."
Here are the main exegetical issues in this passage: Did the men strike the
woman intentionally or unintentionally, or does intention make a difference
in this case? Was the husband involved in the brawl? Was the woman
actively involved, or merely an innocent bystander? Why is the plural Mydly
rather than the singular dly, used for the fetus? Must the woman's Mydly that
"come forth" have been born dead or does the regulation contemplate also
the possibility of their being born alive? Related to this, what is the mean-
ing of Nvsx: death? serious injury? disaster for which no one can be blamed?
What accounts for the change in person and number in this passage in
which "men" struggle, but only one man (the verb is 3d masc. sing.) pays
a tort to the woman's husband in the case without Nvsx, but if there is Nvsx
Ethics (Phillipsburg, NJ: Presbyterian and Reformed, 1985) 150-51; P. B. Fowler, Abortion:
Toward an Evangelical Consensus (Portland: Multnomah, 1987) 147-49; J. K. Hoffmeier, "Abor-
tion and the Old Testament Law," in Abortion: A Christian Understanding and Response (Grand
Baker, 1987) 57-61; R. J. Sider, Completely
5 For a partial tracing of the history of the interpretation of this passage, cf. B. S. Jackson,
Essays in Jewish and Comparative Legal History (SJLA 10; Leiden: Brill, 1975) 75-107 [= "The
Problem of Exod 21:22-25 (Ius Talionis)," VT 23 (1973) 273-304], and S. Isser, "Two Tra-
ditions: The Law of Exod 21:22-23 Revisited," CBQ .52 (1990) 30-44.
THE INTERPRETATION OF EXODUS 21:22-25 235
not "he" but "you" pay "life for life"? Why does only one person pay a
tort if more than one man were fighting? Who is the "you" who renders
"life for life": the same man who paid the fine in the case without Nvsx or
sessment? alone? as the culpable party? Can some of the problems be best
explained on the assumption that there are textual corruptions, or that two
originally unrelated laws have been awkwardly thrown together? How does
the so-called Law of Retaliation relate to the situation described? Was the
application of "life for life, eye for eye, tooth for tooth" applied literally in
the sense of capital punishment ("life for life") and physical mutilations of
the offenders, or does this formulation imply monetary composition ("the
value of a life for the life taken," etc.)? If the latter, how would such pe-
cuniary values be determined? How does this regulation relate to the reg-
ulations which precede it and follow it which concern slaves? Why is this
example addressed at all? What principle(s) does it seek to convey?
The analysis will be simplified a bit by eliminating all views--and these
are not uncommon--which suppose that the text is so corrupt as to require
radical surgery to make sense of it.6 I operate on the assumption that the
text as it stands makes sense if rightly interpreted, an assumption vindicated
through exegesis. The key issue for the remaining interpretations of the text
as it stands pertains to the question of whether or not the text implies the death
of the baby (or babies) both in the case with and the case without Nvsx, or
whether the case without Nvsx allows for the possibility of the child surviving.
The majority view, both in ancient times among rabbinical interpreters
and among modern exegetes, is that the death of the child is assumed
throughout this case.7 On the other hand, the view that the death of the
6 E.g., A S. Diamond ("An
Eye for an Eye,"
of the plainest interpolations in the Pentateuch, being inconsistent with its immediate con-
text." S. E. Loewenstamm ("Exod XXI 22-25," VT 27  357) thinks that "the text of
a law dealing with a blow given to a pregnant woman has become mixed up with the text of
another law providing for the consequences of blows which men dealt upon one another in a
inserted on the basis of the similar language of the slave law of vv. 26-27. H. Cazelles (Etudes
sur le code
de l'alliance [
19 rather than in their present position. Similarly, A. H. McNeile (The Book of Exodus [3d ed.;
Schwienhorst-Schonberger (Das Bundesbuch (Ex 20, 22-23, 33) [BZAW 188;
Walter de Gruyter, 1990] 81-83) concludes a more complete survey of critical scholarship
with the remark that only a few exegetes (R. Westbrook is the only one footnoted) regard
Exod 21:22-25 as a unity in the strict sense.
7 This category of interpretation is the most common among commentators. Along the
lines of this interpretation are the standard commentaries on Exodus by S. R. Driver, M. Noth,
B. Childs, and J. P. Hyatt, as well as S. M. Paul (Studies in the Book of the Covenant in the Light
and Biblical Law
Talionis and Exodus 21:22-25," RB 93  52-69). Isser ("Two Traditions," 31-38) notes
majority ancient Jewish tradition followed this interpretation: Josephus,
§278; Tg. Onq.; Mek.; m. Ketub. 3:2; m. B. Qam. 5:4.
fetus is not assumed has existed from ancient times, going back at least to
Philo of Alexandria, and continues to be defended today.8 According to this
interpretation, the focus of the passage is not on the woman's life, but on
the child's, or at least a combination of both woman and child. The death
of the child is not assumed in the expression "her children [hydly] come
forth," since premature labor induced by the trauma of the blow could
result in a healthy birth and no permanent injury to the mother. Moreover,
the verb "come forth" (xcy) can be used of ordinary birth rather than
miscarriage.9 Hence the expression "there is no Nvsx" could mean that
there is not "serious mishap" to either the mother or the child. If there is
no deadly and/or serious injury (Nvsx may not always imply death), the
offender is still guilty of exposing a pregnant woman and her fetus to
unnecessary life-threatening danger, an offense deserving monetary pen-
alty. On the other hand, if the child (or the mother) dies or is seriously
injured so that there is Nvsx, then the so-called talionic formula "life for life"
(wpn tHt wpn) applies, sometimes taken in the sense of capital punishment
for murder. The fetus, according to this view, is in any case a human
III. A Proposed Interpretation
What I would like to do is examine the cruxes of interpretation in this
passage and offer an analysis of the passage based on solutions to these
1. An Intentional Blow to the Woman?
To begin, was the blow to the pregnant woman intentional or uninten-
tional? A few interpreters have argued that the attack on the pregnant
woman was intentional.10 It is true that the verb Jgn, "butt, push, gore,"
8 Along the lines of this general interpretation are the standard commentaries on Exodus
pensation in Biblical Law," Proceedings of the Royal Irish Academy 76  1-11), M. G. Kline
("Lex Talionis and the Human Fetus," JETS 20  193-201), H. W. House ("Miscarriage
as Premature Birth: Additional Thoughts on Exodus 21:22-25," WTJ 41  108-23), and
J. Ellington ("Miscarriage or Premature Birth," BT 37  334-37). Several elements of
interpretation are also found in
, 273-304). Isser ("Two Traditions," 36-38) notes the minority ancient Jewish tradition which
contemplates the possibility that the child might be born alive: Philo De spec. leg. 3.108-9.
9 Cf. "and the first one was born [xcy] red" (Gen 25:25); "this one was born [xcy] first"
10 D. Daube, Studies in Biblical Law (London: Cambridge, 1947) 108, for example, argues
from Deut 25:11f. (where wife grabs the genitals of a man lighting her husband), that the blow
in Exodus "must be regarded as a deliberate, malicious attack." But, unlike Deut 25:11f., the
text's silence concerning the relationship between the woman and the men lighting more
likely indicates that whether or not her husband was involved is of no relevance to this case.
THE INTERPRETATION OF EXODUS 21:22-25 237
usually refers to intentional acts. But in this case, given the plural, that
"men. . . butt a pregnant woman," it seems more likely that the men, while
intentionally fighting each other, have flown out of control and uninten-
tionally hit the woman as an innocent bystander.
2. The lex talionis: Literal or Figurative?
Next, is the punishment in the so-called lex talionis formula literal or
figurative? According to the figurative view, the lex talionis has to do with
"composition" in the legal sense of the satisfaction of a wrong or injury by
money payment, this being an old rabbinic interpretation.11 Modern schol-
ars, however, frequently understand it to refer solely to literal retaliation
involving execution and maiming. In the discussion which follows, the fig-
urative interpretation will be defended.
There are a number of arguments favoring the figurative interpreta-
tion.12 First, the literal application of the so-called lex talionis is inconsistent
with the principles and legal outcomes of other laws elsewhere in the liter-
ary unit of Exod 20:22-23:33. Exod 21:18-19, for example, presents a more
serious case, a case of deliberate injury as opposed to the accidental nature
of the injury of the pregnant woman described here in Exod 21:22-25. The
penalty there, however, is not to strike the offender and injure him in
exactly the same way in which he injured the other man as one would
expect on a literal understanding of lex talionis--which, by the way, would
be absurdly impractical--but for the offender to pay money, i.e., to pay
for the medical costs and for the lost time of the man he injured.13 In
Exod 21:26-27, the penalty for striking out the eye or tooth of a bondsman
likewise does not result in a talion against the owner's eye or tooth, but a
release of the bondsman, equivalent to forgiveness of the bondsman's debt.
Moreover, the literal talion of "life for life" in the case of accidental killing
of a pregnant woman would be in contradiction with the principle ex-
pressed in Exod 21:13-14, which says that accidental manslaughter is not
a capital offense.
Deut 25:11lf. is a substantially different case of little relevance for comparison. Accordingly,
Kaiser's statement (Ethics, 102) that this "pregnant woman intervened" in the fight--as if a
pregnant woman were likely to jump into the middle of the brawl!--and was "perhaps the
concerned wife of one of them" is needless speculation. Surely the active "intervening" of the
woman would affect the legal outcome inasmuch as the one striking her could with justification
11 Cf. b. Sanh. 79a; b. B. Qam. 83b; b. Ketub. 33b; Rashi on Exod 21:24; m. B. Qam. 8:1.
12 P. Doron, "A New Look at
an Old Lex," Journal of the Near Eastern Society of
University 1 no. 2 (1969) 21-27; and J. K. Mikliszanski, "The Law of Retaliation and the
Pentateuch," JBL 66 (1946) 295-303, summarize most of these arguments.
13 Paul (Studies in the Book of the Covenant, 67-68) argues that the reason the talionic punish-
ment ("eye for eye, tooth for tooth," understood literally) is not invoked in this case is that
there was no original intent to cause injury. But whether or not there was "original intent,"
the use of a stone shows that there was certainly "subsequent intent," and this would have .
been sufficient, had the man died, to make it a tmvy tvm offense.
It is a general hermeneutical principle that one should assume that an
author or editor of a literary unit can be expected to be self-consistent;
hence, one regulation of our unit of Exod 20:22-23:19 ought not be inter-
preted in ways contradictory to another regulation so long as there are
other possibilities which are not in conflict. This principle leads to the
rejection of a literal talion.
Second, Exod 21:29-30 shows that ransom could serve as a substitute for
literal talion. A man who does not constrain an ox with a known tendency
to gore, so that as a result it gores someone to death, is liable on the
principle of "life for life" to give up his own life. Hence, the text says, "also
its owner is to be put to death" (Exod 21:29b). But the text immediately
allows the possibility of ransom: "If a ransom is laid upon him, he will pay
the price of redemption for his life [vwpn] whatever is laid on him." In other
words, v. 29 applies the principle of wpn THt wpn a man whose negligence
has caused the loss of a life forfeits his own life. But v. 30 goes on to show
that this operates within a system that permits a payment of money to take
the place of the actual execution of the offender. Though in principle such
a man forfeits his life, it was possible (and in practice probable)14 for him
to redeem his life by paying the offended party a ransom. A similar prin-
ciple seems to be implicit elsewhere in this collection. For example, if some-
one injures another person, as in the case in Exod 21: 18-19, the offender
on the principle of "wound for wound" deserves to be injured in the
same way. But rather than actually injuring him, which does nothing for
the original victim, the man normally pays a ransom, consisting in the case
of Exod 21:18-19 of payment for the inactivity and medical expenses of the
man he injured. By paying this "ransom," the culprit thereby avoids hav-
ing the same injury imposed on him.
14 Acceptance of ransom is the probable resolution to the situation described here. (1) The
death of the negligent owner would give no tangible benefit to the victim's family, whereas
ransom would both punish the culprit and benefit the family. Family self-interest dictates the
ransom opinion. (2) Other forms of negligent but unintentional homicide are not capital of-
fenses--cf. Exod 21:12-15; Num 35:9-15; Deut 19:1-13. To make negligence with an ox a
capital offense, but negligence with a stone, ax head, or some other inanimate object not a
capital offense seems inconsistent. (3) As I read the OT, it seems clear to me that the moral
sensitivities of the ancient Israelites were not radically different from those of modern people.
Modern people would see capital punishment for unintentional manslaughter as excessive,
and hence morally objectionable as compared with accepting a ransom. So also did the
ancient rabbis of the Talmudic period who therefore concluded that ransom must always be
such cases--cf. J. J. Finkelstein, The Ox that Gored (
sophical Society, 1981) 31; b. B. Qam. 40b-c; m. B. Qam. 4:5. It seems to me probable that
Israelites of the biblical period would also be sensitive to the injustice of making unintentional
manslaughter a capital offense, and would ordinarily on that basis be persuaded to accept a
ransom. In sum, there is good reason to suppose that the death sentence of v. 29 is mostly
hyperbole to underscore the seriousness of negligence which threatens the life of another
THE INTERPRETA1l0N OF EXODUS 21:22-25 239
Additional evidence that' 'life for life" can be related to ransom is pro-
vided by I Kgs 20:39: "Guard this man! If he is missing it will be your life
for his life [vwpn THt Jwpn] or [vx] you must weigh out silver." Here "life for
life" in the sense of capital punishment has an explicit alternative of mon-
etary substitution, which obviously would be the option chosen by anyone
who could afford to pay. There is reason to suppose that this option was available
even where not explicitly stated. The availability of ransom seems to have been so
prevalent that when biblical law wants to exclude it, as in the case of intentional
murder, it must specifically prohibit it (Num 35:31).15 The system of ransom
means that though the lex talionis could in principle be applied literally,16
normally it was not. Rather, monetary composition substituted for literal talion.
Third, the use of the verb Ntn, "you will give life for life" suggests mon-
exchange. The "you" here most
plausibly refers to the nation
personified as an individual (cf. the same usage in Exod 21:2, 14; 22:17, 20,
22, 24-25, 27-29; 23:1-19). Ntn is used here in the sense of making monetary
payment: "you, 0 Israelite, must pay money [as the guilty party]."17 The
sense "pay money" is well attested for Ntn in the immediate context. Ntn is
used in the sense of monetary payment immediately before the so-called lex
talionis when Exod 21:22b states, "and he will pay [ntnv] by Myllp." A few
verses earlier in Exod 21:19b, Ntn is used to describe payment for an injured
man's time of convalescence (Nty vtbw--"he will pay for his inactivity"). A
few verses later, three other examples occur: Exod 21:30, "And he will
pay/give [Ntnv] the ransom for his life"; Exod 21:32, "He will give
15 Num 18: 15-17 gives further illustration of the ransom principle. This text specifies that
the firstborn son who was in principle to be sacrificed to God must in practice be redeemed
for live shekels, the "sacrifice" in effect being a legal fiction. The broad availability of "ran-
som" is also illustrated here, for the text is compelled to prohibit the redemption of firstborn
sheep and goats precisely because otherwise its availability would be assumed.
16 Josephus (
"unless indeed the maimed man be willing to accept money." Hence he sees the possibility
of either literal application or the substitution of a ransom.
17 Another sense of Ntn is just possible: "You, 0
(insofar as you act as a judge in such a case). For the sense "impose penalty" for Ntn, see 2 Kgs
18: 14 and 23:33, where the verb is used of Sennacherib's "imposing" tribute and of Neco's
imposing a "fine" (wnf, a word cognate with the verb used in Exod 21:22, which refers to a
case without Nvsx, and which requires the offender to give monetary payment to the father).
Cf. Lev 17:11; Deut 26:6. This usage of Ntn is infrequent, however, and the examples listed
differ from our text in that there Ntn is used in conjunction with -lf, which designates the one
on whom the penalty is imposed; therefore, whereas the sense "impose penalty" is possible,
the other sense, "to pay money," seems the more likely. Cf. U. Cassuto (A Commentary on the
[through the judge who represents you) shall adopt the principle of 'life for life' ";
"Schwienhorst-Schonberger (Das Bundesbuch, 126) who renders "you are to utilize [the prin-
ciple]"; and TWAT 5.696 which shows that Ntn can take the sense of MyW and tyw.
[Nty] thirty shekels of silver to his master"; and in the context of bailments
Exod 22:6, "If a man gives [Nty] his fellow silver." Hence, the general
employment of Ntn] in the verses surrounding Exod 21:23-25 suggests the
giving of money is a probable meaning in v. 23 as well.18
Fourth, the usage of the word translated “for” (tHt) is consistent with the
monetary interpretation. The meaning here can be taken as "instead of, in
place of," that is, substitutionary compensation--"eye in compensation for an
eye." This usage is illustrated in Exod 21:26b, 27b where a bondsman
whose master has struck out his eye or tooth is freed in compensation for/in
place of the eye or tooth he lost. Likewise, in Exod 21:36, if an ox was known
to be a gorer and yet it was permitted to gore to death another man's ox,
the owner is negligent and must make restitution "ox for [tHt] ox," that is,
he must provide compensation either by giving the monetary value of an
ox, or by providing the live animal itself as a substitute for the dead one.
In Exod 21:37 a thief makes restitution "five members of the herd in place
of [tHt] the ox" he stole, and "four members of the flock in place of [tHt]
the sheep." That is, he compensates for his stealing by restoring not only a
replacement for the sheep or ox he stole, but also by providing additional
sheep (or their monetary value) as a penalty for the act. This monetary
understanding of tHt is further supported by the parallel in Deut 19:21
where the tHt is replaced by b, the beth pretii, "of price."
Some arguments can be raised in support of taking the lex talionis as
literal retaliation, but they are not conclusive. The usual understanding of
the Ancient Near Eastern laws takes the references to talion there quite
literally. A. S. Diamond,19 for example, supports this view by citing LH
(Laws of Hammurapi) §§229-30:
If a builder has constructed a house for a seignior but did not make his work
strong, with the result that the house which he built collapsed and so has caused
the death of the owner of the house, that builder shall be put to death. If it has
caused the death of a son of the owner of the house, they shall put the son of
that builder to death.20
Diamond also cites LH §§196-97: "If a seignior has destroyed the eye of
a member of the aristocracy, they shall destroy his eye. If he has broken
a(nother) seignior's bone, they shall break his bone." Diamond draws fur-
ther support from the "sympathetic" sanction of MAL (Middle Assyrian
Laws) §9, which decrees the cutting of man's lower lip for kissing a
18 Compare the frequent employment of the Akkadian cognate nadanu in economic texts for
the payment of money (C4D N 1.45-46). Schwienhorst-Schonberger (Das Bundesbuch, 102)
thinks the Akkadian expression "X kima X nadanu" corresponds to the Hebrew expression "X
tHt X Ntn," both meaning "to pay a sum corresponding to the value of X."
19 Diamond, "Eye for an Eye," 151-55.
20 My translations of cuneiform laws are from ANET.
THE INTERPRETATION OF EXODUS 21:22-25 241
R. Westbrook, however, argues that even in Ancient Near Eastern laws
that appear to demand a literal talion there is an unstated assumption that
a ransom of money could be substituted for literal talion. Scholars have
noted the contrast between the LH §196 (above), where literal talion seems
to be specified, and LE (Laws of Eshnunna) §42, where it is not: "If a man
bites the nose of a(nother) man and severs it, he shall pay 1 mina of silver.
(For) an eye, (he shall pay) one mina of silver, (for) a tooth, l/2 mina; (for)
an ear, l/2 mina; (for) a slap in the face 10 shekels of silver." Such differences
have often been explained on the basis of supposed progress from a "prim-
itive" society where literal talionic maiming was applied, to the more ad-
vanced society where payment of money substituted for literal talion.
However, the contrast between LH §§229-30, 196-97 and LE §42 just cited
contradicts this theory21 in that the latter with its pecuniary penalty pre-
cedes by a few years those of Hammurapi with its literal talion. The con-
trast, moreover, is unexpected, since the two collections are from societies
that are closely related chronologically, geographically, and culturally.
Westbrook argues that this difference is more apparent than real. The
solution to this discrepancy, according to Westbrook, is that the "ransom"
operated in Mesopotamia as it did in
in the Laws of Hammurapi requiring talion also assumes the possibility of
ransom. The LE §42 simply specifies the ransom price appropriate to var-
ious injuries. Among other examples Westbrook uses to support his thesis is
MAL B §2, where in the case of murder the "owner of the life" can either
execute the murderer or receive compensation from him.22
J. J. Finkelstein has pointed out the absurdity of taking some of the
Mesopotamian laws literally. He notes that LH §230 (cited above) could
not be applied literally in the case of a builder who had no son. Even more
absurd if applied literally is LH §218 which states that a physician whose
patient dies in surgery or is blinded by surgery is to have his hand cut off.
Finkelstein remarks that “it is inconceivable that any sane person in an-
sion" if such a law were literally enforced. Finkelstein concludes that such
laws were never meant to be complied with literally even when they were
first drawn up, but that they were from the beginning hyperbolic, having
more of an admonitory than a legal function, saying in effect, "Woe to
contractors and physicians who because of negligence, greed, laziness, or
any other reason endanger the life and limb of others."23 It can be added,
however, that if a system of ransom were assumed where the life of the
builder or his son could be redeemed and the hand of the physician could
21 This theory is also contradicted by the early Sumerian collection of laws, the Laws of
Ur-Nammu, where pecuniary penalties occur rather than talion.
22 R. Westbrook, Studies in Biblical and Cuneiform Law (CahRB 26; Paris: J. Gabalda, 1988)
23 Finkelstein, Ox that Gored, 34-35.
be redeemed by pecuniary ransom, these laws would not only have an
admonitory function (for which the more graphic statement of the penalty-
execution or mutilation--is more effective), but would also be practical as
law. Such observations support Westbrook's view.
It has also been argued that literal talion was practiced in the Bible. One
passage cited in this regard is Judg 1:6-7, which records the cutting off of
thumbs and big toes of king Adoni-Bezek, who himself had previously done
the same to seventy kings. Although this is often taken as a literal appli-
cation of the principle of lex talionis, it may be more "poetic justice" than
an application of the original, intended meaning of this law.24
Lev 24:19-20 also sounds like a literal application of talion: "If anyone
maims his fellow, as he has done, so shall it be done to him: fracture for
fracture, eye for eye, tooth for tooth. The injury which he inflicted on
another shall be inflicted on him." This prima facie seems to imply literal
talion, but such language does not do so necessarily. Lev 24:17-18 applies
the principle of "life for life" to cover not only homicide, but also the
destruction of a beast. In the case of an animal monetary substitution surely
would have been acceptable. In addition, literal sounding language is not
always literal. As Ibn Ezra pointed out, Samson in Judg 15:11 says, ''as they
have done to me, so I did to them," yet he had not done exactly what the
Philistines had done to him, for they had burned to death his wife and
father-in-law (Judg 15:6), but he simply slaughtered a great many of them
(Judg 15:8).25 In a similar way, in Lev 24:20, the "injury which he inflicted
upon another" could be "inflicted on him" not by exact reduplication of the
injury, but figuratively through a ransom which served as a substitute for
that injury. Moreover, in Deut 19:15-21, the so-called lex talionis--is applied
to the case of a false witness, with the judgment that whatever verdict
would have been carried out against the falsely accused should be carried
out against the false witness. Here the so-called talionic formula "life for
life, eye for eye, tooth for tooth, hand for hand, foot for foot" is not applied
literally, but merely means that the punishment varies with the severity of
the accusation. On the basis of these arguments, a strong case can be made
that the lex talionis did not have to be carried out literally, but could have
been applied figuratively through payment of ransom in order to achieve
The purpose of the lex talionis is to express the principle that the (mone-
tary) penalty one can demand for an injury must be proportional to the
degree of injury involved so that the less the injury, the less should be the
penalty. Moreover, it limits the penalty to the monetary equivalent of the
injury caused, excluding punitive damages (e.g., "two eyes for an eye").
24 So also similar statements of "poetic justice" in the prophets who predict that crimes
committed by people against others will, as punishment, be inflicted on the offenders need not
be considered direct application of this law.
25 Cited by Doron, "A New Look at an Old Lex," 25-26.
THE INTERPRETATION OF EXODUS 21:22-25 243
As for the formulation "life for life, eye for eye, tooth for tooth," which
has a poetic ring to it, there is clear organization in three sections: (1) "life
for life" representing the most serious, i.e., deadly injury; (2) "eye for eye,
tooth for tooth, hand for hand, foot for foot" representing various parts of
the body injured, working progressively from the head down to the foot;
(3) "burning for burning, wound for wound, stripe for stripe" representing
various types of injuries.26 In this regard, categories (2) and (3) overlap-
one can have a "wound" to a "foot" or "hand." It can also be noted that
at least one element of this formula, e.g., "burning for burning," is an
unlikely injury in the context of a blow to a pregnant woman. This confirms
the conclusion that this formula is broader than the present context, ex-
pressing a general principle in a poetic/proverbial manner, a conclusion
supported by the partial repeating of the formulation in Lev 24:18b, 20
(where "breaking for breaking" is added before "eye for eye" and the
formula ends with "tooth for tooth"), and Deut 19:21 (where only "life for
life" through “foot for foot” is quoted, and the preposition b replaces tHt,
"for"). In this context, the lex talionis is saying that if there is any further
injury, no set rule can be given, but the extent of the (monetary) penalties
paid to the aggrieved family should correspond to the extent of the injuries.
As for the specific amount of payment for a specific injury, Exod 21:22
and 21:30 suggest that this was a matter of tort between the family and the
offender. As a practical matter, judges could well become involved should
the parties fail to agree on a price (cf. Deut 21:18-21 where the elders
confinn that a son is incorrigible before allowing the parents to have him
executed), though not necessarily otherwise. If judges became involved,
guidelines such as those at Eshnunna (cr. LE §42 above) could well have
been utilized, though presumably with enough flexibility to allow the judge
to take into account individual circumstances.
The conclusion that the lex talionis has to do with composition is impor-
tant since it undermines one line of argument that draws a distinction
between the death of the fetus, in which money is paid, and the death of
the mother, which is said to be a capital offense where "life for life" is exacted in
terms of literal execution. On the contrary, the above argumentation has attempted
to show that “life for life” in the present context probably does not imply capital
punishment, but rather alludes to a system where composition is achieved through
a ransom which substitutes for talion. If so, there is no distinction in the quality or
kind of punishment between the death of the mother and the death of the child
whether or not one sees miscarriage in the case without Nvsx.
3. What is the Meaning of Nvsx?
The key term Nvsx is a rare one used but five times in the OT (twice in
Exod 21:22-25 and three more times in the Joseph Story, Oen 42:4,38 and
26 After H. J. Boecker, Law and the Administration of Justice in the Old Testament
and the Ancient East (Minneapolis: Augsburg, 1980) 173.
44:29). It is also used in Sir 34:22; 38:18; 41:9 in the Apocrypha. Most
interpreters have felt the general meaning offered by BDB, "mischief, evil,
harm," to be more or less correct. A few interpreters27 assert that this word
more specifically implies "deadly calamity" or the like, support for which
can be derived from the occurrences in Genesis in which Nvsx is used of
Joseph's alleged death by the attack of a wild animal.
A quite different view of Nvsx has been offered by R. Westbrook.28 He
claims Nvsx does not mean "deadly calamity," but refers to "cases where
responsibility cannot be located." This new meaning radically affects the
overall interpretation. The woman, according to Westbrook, has a miscar-
riage after being struck in a brawl, but in the first instance there is not Nvsx
that is, there is not a case of "perpetrator unknown," but rather the culprit
is known. In that case the culprit pays the fine "alone" (Myllpb).29 But if
there is a case of Nvsx, so that responsibility among the men (more than two
being involved) cannot be established, then "you" pay "life for life, eye for
for tooth," the "you" referring to
in the Book of the Covenant. The second half of this regulation is thus an
example of a humanitarian principle that the Israelite community as a
whole (through its representative) should compensate persons who suffer
a loss where individual responsibility cannot be established.
Westbrook claims to find this meaning of Nvsx in Gen 42:4, 38; 44:29, the
only other OT occurrences of this word. Westbrook adopts a suggestion of
D. Daube30 that Jacob did not believe that Joseph was killed by a wild
beast, but said so in Gen 37:31-33 because he was legally bound to acknowl-
edge the evidence of Joseph's coat covered with blood and declare his sons
innocent of negligence (cf. the analogous regulation in Exod 22:10-12,
where bringing the carcass of a sheep torn to pieces removes from the shepherd
the responsibility of making restitution). Later, then, when Jacob expresses fear
that Nvsx would befall Benjamin as it did Joseph, he feared, says Westbrook, not
just "calamity" but "a disaster for which no one can be blamed."
Westbrook's interpretation in Genesis is highly suspect, however. It is
doubtful that Jacob would follow legal formalities privately with his own
sons; such is more appropriate in a courtroom setting with persons outside
of one's own immediate family. Moreover, it is far from clear that Jacob at
first disbelieved the story of Joseph's demise, as the view adopted by West-
brook implies. Indeed, it is Jacob who, upon looking at Joseph's bloody
garment, jumps to the conclusion that a wild beast had devoured him
(Gen 37:33). His sons do not have to lie directly about the matter; they
27 Among the Rabbis, the Mek. states, "Nvsx here only means death" (cited by Paul, Studies
in the Book of the Covenant, 72 n. 3). KB ("todlicher Unfall") agrees.
28 Westbrook, "Lex Talionis," 52-69. j,
29 Ibid., 58-61.
30 Daube, Studies in Biblical Law, 3-15.
THE INTERPRETATI0N OF EXODUS 21:22-25 245
simply do not contradict Jacob's false deduction. When he fears lest Nvsx
befall Benjamin in Gen 42:4, he does not yet suspect the brothers of any-
thing, so that a legally loaded meaning "disaster for which no one can be
blamed" is inappropriate. It is only later in this chapter, when the brothers
brother Simeon, that Jacob begins to suspect the brothers of treachery, just
as Joseph had planned for him to do by withholding Simeon and returning
the money, making it appear as if they bought the grain by selling their
brother.31 Nvsx in Gen 42:38 cannot refer to a "case where responsibility
cannot be located" because Reuben in v. 37 specifically volunteers to take
responsibility for the safety of Benjamin, and yet Jacob refuses to let him go
lest Nvsx befall him.32 Moreover, in Gen 44:28-29 the brothers, who know
Joseph only as an Egyptian official, repeat to Joseph Jacob's words to the
effect that Jacob believed Joseph to have been torn by a beast, and fears Nvsx
for his brother Benjamin as well. If Nvsx contained an obvious, implied
suspicion of the brothers, they would not have incriminated themselves by
repeating the accusation to an Egyptian official. In sum, Nvsx in Genesis
need mean no more than "(deadly) disaster" from which Jacob wanted to
protect Benjamin, the last remaining child of his favorite wife Rachel.
Westbrook ignores the usage in Sirach, perhaps because he considers the
meaning of Nvsx there to be a late development. It suffices to say that the
meaning "a disaster for which no one can be blamed" does not fit the
Westbrook's meaning for Nvsx in Exod 21:22-25 does not fit the partic-
ulars of that case either. Westbrook supposes that the text contemplates a
circumstance where the blame for striking the pregnant woman cannot be
placed on any particular individuals. However, a case of striking a pregnant
woman during a brawl seems an unlikely one for having a "perpetrator
unknown." It is unlikely that a pregnant woman would be alone with strangers
during a brawl. On the contrary, one would expect there to be plenty of witnesses:
the woman, other brawlers, and gawking bystanders. Moreover, anonymity in the
society of ancient
"perpetrator unknown" prima facie seems farfetched.
The etymology of the word Nvsx perhaps speaks against Westbrook's
"legal" interpretation of this term. Nvsx could well be derived from hsx
meaning "to heal" (KB; contra BDB which takes it from hsx II "be sor-
rowful" based on an Arabic root). If so, Nvsx would be related to the noun
ysx, which means "physician" in Talmudic Aramaic and in Syriac. This
31 Cf. M. Sternberg, The
Poetics of Biblical Narrative (
Press, 1985) 298-300, for this analysis.
32 Schwienhorst-Schonberger, Das Bundesbuch, 91.
term in turn is derived from Akkadian asu, itself a loanword from Sumerian
A.ZU (traditionally "knower of the waters").33 Denominative verbs have
been derived secondarily from this non-Semitic noun in Aramaic (Aphel
“to cure," Ithpaal "be cured, recover"). A reasonable interpretation is
that the noun Nvsx in Biblical Hebrew is also a secondary development from
this word, in which case Nvsx would be expected to be a medical, not a legal
term, meaning something like "injury requiring attention of a physician,
serious injury," from which a secondary sense such as "deadly injury"
might have developed (cf. KB, "[healing, euphemism for] deathly accident").
In the context of Exod 21:22-25, Nvsx is not limited to "deadly injury"--
even though that is the sense in Genesis--but "serious injury/medical
calamity," including injuries up to and including death. This seems clear
from the talionic formula after the case with Nvsx which does not end with
"life for life," but contemplates various lesser injuries as well.
4. What Is the Meaning of Myllpb?
The philologically difficult term Myllpb cannot be pinned down with
certainty. Traditionally it has been understood to mean "by judges/arbi-
trators" (to keep the husband from demanding too much, so Tg. Onq.), but
this meaning is doubtful. Although the verb of this root does seem to have
the meaning “to judge,”34 the lexical meaning "judge" for lylp is not well
established from its only other occurrences in Deut 32:31 and Job 31:11.
Moreover, the context of Exod 20:22-23:33 makes the interpretation
"judges" doubtful. If one excludes the philologically and contextually far-
fetched view that Myhlx in Exod 21:6 and/or 22:7-9 means "judges,"35 we
find that (excluding Exod 21:22) there is no direct reference to judges in the
entire legal unit of Exod 20:22-23:33. Indeed, it seems that even among
those regulations in the Book of the Covenant which might not inappro-
priately be called "laws," those laws regularly lack administrative details
such as who decides a case, who carries out a sentence, and how a sentence
is to be carried out, all of which suggests that these so-called laws might be
better characterized as moral comments on legal matters than as a com-
plete law-code. This context casts further doubt on the traditional rendering.
33 S. A. Kaufman (The Akkadian
Influences on Aramaic [Assyriological Studies 19;
rejects association of asu with Nvsx. CAD A II.347 rejects that A.ZU means "knower of the waters."
34 Interestingly, the Hebrew term for "to pray" (llpth) can be understood as a HtD stem
of this root meaning "to seek a judgment for oneself." Cf. M. Greenberg, Biblical Prose Prayer
(Berkeley: University of California Press, 1983) 21-22.
35 Cf. J. M. Sprinkle, "A Literary Approach to Biblical Law: Exodus 20:22-23:19" (Ph.D.
Hebrew Union College-Jewish Institute of Religion,
344-49, or the forthcoming revision of this work for the JSOTSup, for a discussion of Myhlx
in these texts.
THE INTERPRETATION OF EXODUS 21:22-25 247
If Myllpb does not refer to judges, then to what does it refer? There has
long been a conjectural emendation that replaces this term with Mylpnb,
meaning “the price of the miscarriage.”36 I am normally reluctant to accept
conjectural emendation, but this reading cannot be altogether ruled out.
Another interpretation of Myllp was defended by E. Speiser.37 He argues
that the root has to do with “reckoning, assessing” and that Myllpb means
"by assessment/reckoning." Hence, the penalty paid is assessed on the basis
of the stage of the development of the dead fetus. The rationale for this view
is that the later the stage of pregnancy, the more time has been lost to the
woman, the greater the grief for the loss of a child, and the more difficult
the miscarriage. This may have been the view of the LXX, which para-
phrases Nvsx hyhy xl as "imperfectly formed child" and translates Myllpb
"with valuation."38 Furthermore, Speiser's view gains credibility in that penalties
for miscarriage actually do vary with the age of the dead fetus in the parallel
ancient Hittite Law § 17, which states, "If anyone causes a free woman to
miscarry-if (it is) the 10th month, he shall give ten shekels of silver, if (it is) the
5th month, he shall give five shekels of silver and pledge his estate as security."39
Speiser makes a good case for his interpretation of llp. Those who oppose
abortion are understandably uncomfortable with this view because the life
of a young fetus being worth less than that of an older one might be used
to justify first trimester abortions when the fetus is less valuable. This con-
clusion is not a necessary deduction from Speiser's interpretation, however.
Lev 27:1-8 gives monetary values for redeeming persons who have been
given as a votive offering to the sanctuary. It is interesting to note that the
monetary value assigned to people varies according to age and sex, from a
low of three shekels for a girl between one month and five years, to a high
of fifty shekels for a male aged twenty to sixty. Yet despite these differing
monetary valuations, probably reflecting the market value of slaves, the
intentional killing of anyone of them would be considered murder. The
same could be true of the fetus, having a lower economic value for the
family early in pregnancy, and a higher economic value later on, but per-
haps being considered equally human throughout. Note also Exod 21:32
where a monetary value of thirty shekels is assigned to a male or female
slave gored to death by an ox, but the transcendent life value of the slave
36 S. R. Driver (The Book of Exodus [Cambridge: Cambridge University Press, 1911] 219)
attributed this view to Budde. It is mentioned by BDB.
37 E. A. Speiser, "The Stem llp in Hebrew," JBL 82 (1963) 536-41.
38 mh> e]ceikonisme<non and meta> a]ciw<matoj. The LXX seems to imply the view that an
imperfectly formed child who is not yet viable independently of the mother is not yet fully
human; consequently, there can be no case Nvsx ("deadly injury") in the case of the death
of the fetus. Weingreen, "The Concepts of Retaliation and Compensation in Biblical Law,"
9-10, argues that the LXX's rendering was influenced by the debate among Greek thinkers
as to whether or not the embryo is to be considered a living entity.
39 A later version of this law increases the penalties.
is nonetheless affirmed by the execution of the ox as a murderer for taking
a human life in violation of Gen 9:5. This stoning of the ox is in contrast
with the case where an ox gores an ox to death in which the goring ox need
not be dispatched because human life is not involved.
There is another view of the meaning of llp which is neutral on the
question of whether or not the fetus dies. Westbrook, as we have seen,
understands this root to imply the sense of "sole responsibility" and that
Myllpb means "[he pays] alone." He argues that llp in the G stem means
"take sole responsibility" and in the D stem means "shift responsibility (to )1
subject or object of verb )."40 A. Berlin, however, has rightly criticized West-
brook's emphasis on "sole/alone" in his view that llp means "sole re-
sponsibility." Instead, she has made a good case that this root has to do
simply with "responsibility, accountability." According to her, Myllpb
means ''as the culpable party."41
"beth of price," and the plural as that of abstraction, and read the text,
"he pays/gives the amount for which he is culpable" (lit. "amount of [b] culpable
ones/culpability"). If taken this way, the expression could refer to some
customary set amount (perhaps varying according to the development of the fetus
as in the Hittite Laws), or an amount which takes into account any extenuating
circumstances. My translation above tentatively adopts this modification.
In summing, there are too many uncertainties to make any firm conclusions
based on Myllpb.
5. Is There a Miscarriage in the Case without Nvsx?
Does the case without Nvsx imply the death of the fetus? My answer is yes,
and several lines of argument support this conclusion: there are medical
40 Westbrook ("Lex Talionis," 58-61) applies this view to various passages. Deut 32:31 reads,
"For their rock is not as our rock; our enemies are alone" (Myllpb responsible for themselves).
Job 31:11 & 28 takes Myllp Nvx as "a sin for which I alone am responsible." 1 Sam 2:25, "If
a man does wrong against a man, God may take the blame for him [Myhlx vllpty], but if a
man does wrong against the LORD, who will bear responsibility for him [Myhlx vllpv]?" Ps
106:30, "Pinhas stood and took upon himself responsibility [llpy] and the plague was halted"
(cf. Num 25:7-8, where what llpy refers to is taking bold initiative against the source of divine
responsibility [for the sins, tllp] of your sisters," i.e.,
to see your face.' "
Talionis and the Human Fetus," 195-96) earlier came to a similar view that lylp has to do with
incurring guilt, though he exceeds the evidence by claiming that it could mean "liability to
death." I doubt Kline's view that the final mem is an emphatic enclitic since this is both rare
and mainly limited to archaizing texts.
THE INTERPRETATION OF EXODUS 21:22-25 249
reasons for thinking this view likely; the use of the plural hydly gives support
to it; and comparison with similar ANE laws suggest this line of interpretation.
First, the medical reasons. In the days before modern medical science,
most premature births under these circumstances would result in the death
of the fetus. R. N. Congdon, writing as a physician, remarks on this passage
by reviewing modern medical statistics concerning premature births fol-
lowing physical trauma (usually automobile related) to a pregnant mother.
He points out that only in the last six weeks (of a normal forty weeks) of
pregnancy would an infant's lungs be sufficiently developed for it to survive
outside the womb. Apart from modern medical technology, any premature
births before that time would result in fetal death. But not even premature
birth in the last six weeks would necessarily result in a live birth. A blunt
blow severe enough to induce premature labor frequently causes such dam-
age as fetal skull fracture, disruption of the oxygen supply through the
umbilical cord, uterine rupture, and overt disruption of connection be-
tween the placenta and the uterus, each of which is fatal for the fetus. Even
less severe disruptions of the placenta creating an impaired oxygen supply,
if not repaired, typically result in labor or in fetal death within forty-
eight hours.42 Congdon concludes: "There are only a few instances, in
a nontechnological era, in which blunt trauma serious enough to cause
abortion of the fetus would result in a viable birth. If medical data has
anything to say about Exodus 21:22, it indicates that the overwhelming
probability for such a situation is an outcome of trauma-induced abortion
with fetal demise."43
Another argument in favor of assuming the death of the fetus comes from
the use of the plural hydly. One of the arguments used by W. Kaiser against
assuming the death of the child is that if the author wanted to denote a
miscarriage, he should have used the root lkw (a verb used of miscarriages,
cf. Exod 23:26) along with dly.44 This argument from silence is not partic-
ularly strong, however. It could be turned on its head by posing an equally
weak argument from silence: why did the author not use the ordinary word
for a live birth dly, if he had that in mind, rather than the more ambiguous
xcy ("came out")? The better answer to Kaiser, however, is to observe that
the author does not need to use the term for miscarriage because the plural
form hydly is a plural of abstraction with the sense "the product of her
womb," an apt term for an inadequately developed baby.45
Other explanations for this plural are unconvincing. C. E Keil argued
that the plural hydly occurs "because there might possibly be more than
42 R. N. Congdon, "Exodus 21:22-25 and the Abortion Debate," BSac 146 (1989) 140-42.
43 Congdon, "Exodus 21:22-25," 142.
44 Kaiser, Ethics, 170 n. 22.
45 The recent monograph by Schwienhorst-Schonberger (Das Bundesbuch, 97-98) has come
independently to similar conclusions.
one child in the womb."46 This seems farfetched, however, since the possi-
bility of twins introduces an unneeded complication to the point being
made by this case. Kaiser adds that the plural "allows for. . . either sex,"47
but this suggestion too is an irrelevant complication; moreover, such a
plural is not the way in which the Book of the Covenant expresses the idea
that a regulation applies regardless of sex (for that we expect something like
hdly vx dly; cf. Exod 21:15, 17, 28, 31, 32).
More plausible is the view that the plural refers to a not fully developed
fetus that is nonviable when born, and that the plural of abstraction "the
product of her womb" is used proleptically in anticipation of, or foreshad-
owing, the fatal outcome (note that the situation described would usually result in
stillbirth). This interpretation, by the way, need not imply that a live, unaborted
fetus is subhuman. It merely implies that a corpse is sub-human.
Finally, the comparison with ANE laws confirms the view that the fetus
is assumed to have died. When the case laws in the Bible are compared with ,
those of the Ancient Near East, it is clear that in broad terms they come
out of the cultural milieu. Indeed, the fact that in one case a biblical law
is identical in wording with a known, earlier Mesopotamian one (cf.
Exod 21:35 and LE §53) suggests some literary dependence. I argue (in
general agreement with Cassuto)48 that biblical laws are essentially making
[moral comments on legal matters, but that their wording draws upon legal
traditions that would have been known to the Israelites, though modifying
those laws to express a uniquely Israelite ideology. But since Mesopotamian
legal traditions (probably via the Canaanites) are being drawn upon, it is
not irrelevant to make comparisons (and contrasts) with cuneiform laws
that deal with similar subject matters, as has been the universal practice of
modern scholars of biblical law.
When this is done, it is discovered that not only Hittite Laws §17, but also
Sumerian Laws §§1-2, what has been provisionally taken as part of the
Laws of Lipit Ishtar,49 LH §§209-14, and MAL §§A 21,50-52 all refer to
causing a miscarriage by striking a woman (sometimes discussing the penal-
ties for killing her in the process), but none of them contemplates the
possibility of a birth of a viable baby. Surely this evidence suggests that our
case, where the language is a bit ambiguous and is set in a corpus of laws
that is drawing upon contemporary legal traditions influenced by Meso-
potamia, probably does not contemplate a viable birth either.50
46 C. E Keil, Commentary on the Old Testament: Pentateuch
47 Kaiser, Ethics, 103.
48 Cassuto, Exodus, 262.
49 Translated in M. Civil, "New Sumerian Law Fragments," in Studies Landsberger (Assyri-
Studies 16; Chicago:
translated in ANET.
50 Paul (Studies in the Book of the Covenant, 71 n. 1) correctly observes, "The fact that
so many of the legal corpora specifically refer to [causing a miscarriage), which apparently was
THE INTERPRETATION OF EXODUS 21:22-25 251
We conclude that the death of the fetus is to be assumed so that the
question of Nvsx ("serious injury") applies solely to the mother.
6. How are the Changes in Person and Number in Exod 21:22-25 to
We may now review our conclusions, paying particular attention to the
changes in person and number in this passage. If there is no Nvsx after the
miscarriage, that is, no serious injury to the woman, then someone ought
to pay the father for the economic loss to the family of the child. The
purpose of the plurals (men brawl, men strike a pregnant woman) is to
point out the accidental nature of the injury--they are fighting each other,
not the woman, and are out of control.51 The switch to singular, "he pays,"
reflects an indefinite use of the singular.52 That is, "someone" pays,
most negligent party in the brawl (
means ''as the culpable party" would go along with this view), or a repres-
entative of the men who brawled. The point is that the accidental, negli-
gent taking of the life of an embryo has resulted in a great loss for the
woman's family, and someone should compensate monetarily for the dam-
age done by paying the father as the head of the family.
As for the other half of the regulation, if there is serious injury (Nvsx) to
the woman up to and including death, then the so-called lex talionis applies
which states that the penalty, in this case monetary, should vary according
to the degree of injury caused. The "you" (sing.) who pays according to this
that the "you" is
guilty party cannot be determined. In my view, in contrast, the "you" is
one who pays the fine Myllpb to the husband.53 This usage of the second
common, may be due to the literary dependence of one corpus upon another." That the Bible
refers to it suggests some literary dependence. Kaiser (Ethics, 103) states, "We cannot agree
that these laws are the proper background for [Exod 21:22-25]." To this I can only ask, why
51 Kline ("Lex talionis and the Human Fetus," 198) suggests this plural may be "the
indefinite plural active used as a passive, signifying 'a pregnant woman is struck.' " But the
ready antecedent Mywnx ("men") speaks against this.
52 Cf. E E. Konig, Historisch-comparative
Syntax der hebraischen Sprache (
1897) 354-55, §§324d-dB, for examples of the indefinite use of the singular verb. Some ex-
amples: Gen 19:17, 38:28, 48:1, 50:26; Exod 10:5, 21b; Lev 2:8.
53 The singular "you"
in biblical law flows easily between
patriarch and a particular Israelite within
singular elsewhere: the "you" in Exod 21:2 ("If you acquire a
'Hebrew' slave") is
represented by a an individual Israelite who happens to be a slaveholder; the "you" of
("from my altar you may take him") is
for executing murderers; the "you" of the Decalogue is
"your poor" in Exod 23:6 is
Patrick, "I and Thou in the Covenant Code," SBLSP (1978) 1.71-86.
person serves to remind the reader that this is not an impersonal law-code,
personal address to
IV. Exod 21:22-25 and the Surrounding Context
The case of the pregnant woman struck during a brawl breaks a sequence
between the two bondsman laws, Exod 21:20-21 having to do with striking
a bondsman to death, and 21:26-27 having to do with injuring a bonds-
man. Why the case of the pregnant woman should come between these two
has puzzled commentators.
According to D. Patrick, Exod 21:22-25's link with Exod 21:26-27 is only
superficial. The case of the injured bondsman came to the lawgiver's mind
because, like the lex talionis, it deals with "eye" and "tooth" and uses the
term tHt.54 Others, less graciously, suggest scribal misadventure.
My own view, suggested to me by H. C. Brichto,55 is that Exod 21:20-27
as a group is fundamentally about injuries to bondsmen, specifically debt
slaves as in Exod 21:2-5, which is a natural sequel to the discussion of injury
to the full citizen in Exod 21:18-19. Exod 21:22-25 on the pregnant woman
is parenthetical, though necessary to further the author's discussion of
What the case of the pregnant woman introduces is the principle that one
should as a rule pay the exact monetary equivalent for mayhem that one
caused even if the mayhem was unintentional, as the striking of the preg-
nant woman in a brawl among men would be. This principle was intro-
duced, however, to form a contrast with the case of injury to a bondsman
that follows. The case of injury to a bondsman by using similar language
but drawing a quite different conclusion indicates that this principle does
not apply in the case of a beating of a bondsman in which the beating is
intentional (this is the master's right if for the purpose of making him work),
but the maiming was (in all likelihood) unintentional. In this case, and
unlike the talionic formula, the penalty does not vary according to the
degree of injury, but maiming of any sort, as great as the loss of an eye, as
little as the loss of a tooth, results in the bondsman's freedom and the loss
of the master's investment, i.e., the master loses the time owed by the
bondsman in lieu of the bondman's unpaid debt.
The reason why the talionic formula does not apply, but that any maim-
ing results in the slave's freedom, is that this bondsman (being actually a
"distrainee" or an "indentured servant" rather than a "slave"--cf.
Exod 21:2-4) must be treated as a human being despite his reduced social
status. The master has the right to the bondsman's time and to a limited
extent can use force to make him work, but the master has no right to his
bondsman's person. If he murders the bondsman, he is subject to "vengeance"
54 D. Patrick, Old Testament Law (Atlanta: Knox, 1985) 77.
55 Personal dialogue.
THE INTERPRETATION OF EXODUS 21:22-25 253
(Exod 21:20-21) as with the murder of any other human being; if he maims
him, he loses all rights as master (Exod 21:26-27) since he has no right to
treat another human being in that way. Hence the biblical author has
artfully expressed a philosophical concept concerning the humanity of a
bondsman by this juxtaposition of the case of the pregnant woman and the
case of the maiming of a bondsman.
If this view is correct, the lex talionis was introduced not to prove the
humanity of the fetus--it is quite ambiguous on that point--but rather to
prove the humanity of slaves.
Although one might like to find definitive answers to the abortion ques-
tion from Exod 21:22-25, it is not possible to do so. The detailed exegetical
analysis of Exod 21:22-25 (lex talionis) given above shows the passage to be
ill suited for establishing a biblical ethic concerning abortion.
On the one hand, the case of the pregnant woman does not disprove the
humanity of the fetus. The killing of the fetus and the killing of the mother
are treated alike: in both cases composition is achieved through payment of
money. The text talks only about accidental killing, and exegetically from
this passage alone we have no way of knowing whether the intentional
killing of the fetus by its mother would have been considered murder. What
is clear here is that the accidental killing of the unborn is punished. What
about the intentional killing of the unborn? Would it go unpunished?
Exod 21:22-25 does not exclude the possibility that the intentional killing
of the mother and the intentional killing of the fetus would also be treated
alike, that is, as murder.
On the other hand, the case of the pregnant woman cannot be used to
prove the humanity of the fetus either. Contrary to the exegesis common
among certain anti-abortion Christian theologians, the most likely view is
that the death of the fetus is to be assumed throughout the entire case. It
cannot be proven whether the formula “life for life” applies to the fetus
since it occurs in the instance with Nvsx ("serious injury"), which deals
exclusively with injuries to the mother. The wording of the case does not
rule out the possibility that the fetus was considered subhuman. Rather
than proving the humanity of the unborn, the passage instead serves (by its
contrast with the subsequent case) to demonstrate the humanity of slaves.
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