Note: Events and reviews are the mainstay of the blog, but some original research and thoughts will of course be posted from time to time. The ideas in these posts are not finished pieces. Rather, they are ideas thrown out with the hope that they will generate comments and debate. This is a fragment I stumbled across while doing research for my MA thesis, supervised by Prof. Menahem Kahana. I thank Prof. Aharon Shemesh for the email conversation that sparked this post.
Several years ago, Aharon Shemesh (whose new book with Cana Werman was just published, and whose old books were recently reviewed by Beth Berkowitz) reread a Qumran fragment of what he termed “Midrash Mishpatim“. Designated simply and prosaically 4QHalachaa by its original editors, Shemesh was able to see through the holes in the fragment (and there were many) and posit an exciting new reconstruction of one pericope, a rewriting and commentary on Exodus 21:23. His interpretation managed to make sense of the fragment while simultaneously reconstructing not only an interpretation of Exodus 21:23 (ונתן בפללים) heretofore unheard of, but also one that marks and explicates the exegetical element of the rewriting.
Speaking to Prof. Shemesh recently about the same fragment, I came across one other place where it is possible to offer a reconstruction along the same lines. Less exciting and revolutionary, but in this instance somewhat important, I believe, for the history of rabbinic legal history and biblical interpretation.
In the DJD reconstruction of the scroll, we read in fragment 8 (the asterisks mark letters that are not complete in the scroll, like the requisite circles above the letters in critical editions):
[כי יכה איש את עבדו או את שפחתו ]בעין [ או כי יפיל את שן]
[עבדו או אמתו לחפשי ישלחנ]*ו ונתן *ש*ב[תו ורפו]א ירפא
[תחת עינו או שנו כי יגח שור איש או ]*אשה והומת השור וסקלהו
As you can see, the words that remain in the fragment are בעין in l. 1, ונתן שב…א ירפא in l. 2 and אשה והומת השור וסקלהו in l. 3. The DJD editors decided that these words are the connection point between the midrash on Exodus 21:26-27 and idem, 28.
However, in a conversation with Prof. Shemesh, I suggested that בעין does not fit the role of the object of the blow quite well – one would expect את עינו as in MT or perhaps על עינו as in rabbinic Hebrew. בעין however is part of the talionic formula – not in Exodus, but in Deuteronomy 19:21, in the law of conspiring witnesses “עין בעין שן בשן יד ביד רגל ברגל”.
Beyond this “narrow” question of grammatical construct lies the wider question of the reliability of such reconstructions. The editors decided to read the fragment as commenting on the sequence Exodus 21:26-28, but this is but one option. The grammatical question can actually lead to the following reconstruction:
עין] בעין [ שן בשן יד ביד
רגל ברגל כויה תחת כויה ] ונתן שב[תו ורפו]א ירפא
[כי יגח שור איש או ]*אשה והומת השור וסקלהו
This reconstruction (the DJD editors note that the first four reconstructed words in l. 3 don’t fit the estimated size of the fragment, and can be omitted) would have the fragment be the connection point between two laws that are not contiguous in the Biblical text: the law of the miscarrying woman, and the law of the goring ox. This reconstruction also lets the fragment answer an important question.
The formula “an eye for an eye” never appears as an integral part of a law in the Pentateuch, but rather has a way of being interpolated into an already existing law. As an exercise, try reading Exodus 21:22-25, Leviticus 24:16-22 and Deuteronomy 19:21 without this formula. The verses will stand on their own just fine.
4Q251 knows this, and might be creating a “new” law of assault in order to solve the problem (warning: unsubstantiated reconstruction!):
כי ינצו אנשים ונתתה עין] בעין [ שן בשן יד ביד
רגל ברגל כויה בכויה ] ונתן שב[תו ורפו]א ירפא
[כי יגח שור איש או ]*אשה והומת השור וסקלהו
A more substantial reconstruction of line 1 might – perhaps read something like “when men fight together, and one hits the other and maims him, then you shall give eye for eye, tooth for tooth etc.”
In this new law, 4Q251 incorporates the talionic formula together with the law that compensation for lost time and medical expenses is given to the victim of a brawl (Exodus 21:19). This reading of Exodus 21:18-19 and 22-25 as parts of the same law is found in the Mekhilta according to Rabbi Ishmael (Nezikin 6 and 8 ) and the Mishnah (Bava Kama 8), and now – perhaps – also in 4Q251.
It should be noted that even if the DJD reconstruction is maintained, the inclusion of the formula from Exodus 21:19, ונתן שב…א ירפא means that Exodus 21:18-19 is read together with the other laws of injury, and not, for example, as part of the laws of murder. But I think the proposed reconstruction solves the grammatical problem and the legal problem in one swoop. It also does so more elegantly.