I. 1A 11.u.1

natural concomitant of his
empire-building was the in-
creasing centralization of gov-
ernment with its deepening in-
trusion into the private domain.
Perhaps it is no coincidence,
therefore, that this highly capa-
ble administrator should have
been the one to turn what had
previously been a matter of pri-
vate law into public law. An as-
sault on the human person that
entailed the infliction of actual
physical harm was no longer
simply a matter of civil proceed-
ings, but was, in effect, rede-
fined a criminal conduct. It was
now recognized to be a crime
against society. Private ven-
geance and the demand for
compensation, to be negotiated
by the families of the victim and
the assailant, were replaced by
public criminal law and its im-
position of punishment by the
state authority. Hammurabi's
new law spoke to a realization
that violence in interpersonal
relationships undermines the
order and stability of society,
and that, as a consequence, the
state assumes an obligation to
promote domestic tranquility in
order to protect the public and
to preserve the security of its
citizens. Furthermore, the new
legal concept underlying the lex
talionis gave expression to the
striving for the achievement of
exact justice. The nature and
degree of punishment was made
exactly proportionate to the in-
jury inflicted: only one life for
one life, only one tooth for one
tooth, and so on.

It need hardly be mentioned
that the foregoing discussion
should not be construed to
imply approval of the literal
implementation of the "eye for
an eye" rule or any connotation
of a judgment that it is other
than barbaric. What is to be
understood, emphasized, and
reiterated, however, is that
Hammurabi's innovation, far
from being primitive or retrog-
ressive, was, .in conception,
revolutionary and progressive
in its contemporary setting, if it
is analyzed from the point of
view of th•legal philosophy be-
hind it, the ideals and goals that
it postulated, and its central
thesis and concern.

Proceeding with the bask discus-
sion, Dr. Sarna declares that "the
generalized Talionic principle is pre-
cisely stated: 'You shall do to him as he
scheme to do to his fellow.' The detdiled
specification is once again entirely in-
appropriate to the case in question, if
taken literally. The simple fact is that
bodily mutilation is not a punishment
in biblical law. No witness, truthful or
lying, could by his testimony in court
have caused the defendants to receive
any of the mutilations. Hence the wit-
ness could never himself have lost an
eye or a limb. The 'Eye for an Eye'
formula manifestly reiterates the
generalized principle in concrete form
for the sake of emphasis. It can not
possibly be interpreted here literally."
The Jewish traditional treatment
and the application of the death pen-
alty is further evaluated by Prof. Sarna
who provides this summary that seems
to give credence to no death penalty

I

endorsement in the Jewish precedents:

One final, inferential bit of
evidence may be additionally
adduced in support of the non-
literal application of the lex
talionis. Summing up a discus-
sion of the distinction between
murder and manslaughter, and
the legal procedure to be fol-
lowed in the latter case, Num-
bers 35:31 solemnly warns that
a willful murderer cannot elect
to evade the death penalty by
making a monetary payment:
"You may not accept a ransom
for the life of a murderer who is
guilty of a capital crime; he
must be put to death."
Underlying this proscription
is the obvious implication that
in cases of physical assault
other than murderer, compensa-
tion was practiced and san-
tioned. This, indeed, is the tradi-
tional rabbinic interpretation of
the lex talionis.
This an Israelite law, as in
Hammurabi's legislation, it was
accepted that causing injury to
the person of another was not a
matter of private wrong, but
was prosecutable in a criminal
proceeding. However, unlike its
Near Eastern predecessors, the
"eye for an eye" formula was
stripped of its literal meaning
and became fossilized as the
way in which the abstract legal
formula of equivalent restitu-
tion was expressed. The thrust
of the talionic principle was not
vengeful or penal but compen-
satory. Furthermore, whereas
Hammurabi gave legal sanction

'■ rcy , , 1 •

to the inequality, in that talion
applied only where the victim
was a member of the upper
class (awilum) but otherwise
pecuniary compensation was
the rule, the Torah applied tal-
ion equally, irrespective of eco-
nomic and social distinction. Is-
rael also rejected Hammurabi's
vicarious punishment system.
Talion was restricted to the per-
son of the assailant.

The theme is enriched. It will
surely create scholarly debate with dif-
fering views. It adds to the current
interest at a time when petitions are
circulating in support of the death pen-
alty. •
Therefore, so great a book as Sar-
na's Exploring Exodus, becoming avail-
able at Passover time, merits this
lengthy salute or scholarly attaine-
ment.
* •
There is one more introductory as-
pect to the Passover theme. It is based
on a personal judgment. It is the choice
of a highly spiritual matter as means of
relating it to Passover.
Elie Wiesel writes a Purim play,
The Trial of God (Schocken). The re-
view was written in time for Purim be-
cause the drama was based on a Purim
Shpiel. But it suggested to this colum-
nist the equated Levi Yitzhak of Ber-
dichev challerige to the Almighty dur-
ing a Rosh Hashanah service in his
Chassidic synagogue. That Kaddish
Challenge has become a rallying cry
introduced by Levi Yitzhak 200 years
ago. Therefore, the resort to that theme
as an element in the Passover consec-
ration. May it keep inspiring Jewry
and the People Israel everywhere!

ON

Though , written in Yiddish
and reflecting the inner world of
the ghetto Jew, the beauty and
power of some of these prayer-
songs have made them popular in
many parts of the world. The
best known is the famous Kad-
dish, which expresses his endless
love for Israel.
A second prayer-song said to
have been written by Levi Yit-
zhak mirrors another 'part of his
personality and teaching: the
awareness of God's all-pervading
presence. God was not in some
faraway "there," Levi. Yitzhak
taught, but in an ever-present
"here," as much a part of man as
his own breath, as near to him as
the innermost star. The verse of
Scripture "I shall set the Lord
before meat all times" was to be
taken quite literally. It was of the
immanence of God that the
Psalmist sang:
Whither shall I go from Thy spirit?
Or whither shall I flee from Thy
presence?
If I ascend up into Heaven, Thou art
there;
If I make my bed in the nether-

world, behold, Thou art there .. .
Psalms 139:7)
and about which the medieval
Spanish poet-philosopher, Judah
Halevi, wrote:•
Lord, where shall I find Thee,
High and hidden is Thy place;
And where shall I not find Thee,
The world is full of Thy glory.
I have sought Thy nearness,
And with all my heart have I called
to Thee;
And going out to meet Thee,
I found Thee coming toward me.
This indwelling of God, the
immanence of the divine in our
world and in our lives, is ex-
pressed with magical simplicity
in the prayer-song of the Rabbi'
of Berditchev called "The
Dudele." The name of this poem
is derived from the Yiddish, Du,
the second-person "you." Dudele
is the diminutive form of Du, and
so there is an endearing, infor-
mal, and intimate character to
the name by which Levi Yitzhak
calls God in his song.
The Dudele text will continue to be

cherished with the Kaddish by the great
of Dudele. Chassidic scholar I3resner's
translation follows:

THE DUDELE
Master of the Universe,
I will sing a song to Thee.
Where will I find Thee?
And where will I not find Thee?
Where I go, there art Thou,
Where I stay, there art Thou.
Only Thou, Thou alone,
Thou again, and only Thou.
When things go well — Thou,
and, alas, when things go ill — Thou.
Thou art,
Thou west,
Thou wilt be.
Thou reignest,
Thou didst reign,
Thou wilt reign.

In heaven art Thou,
On earth art Thou,
• Above art Thou,
Below art Thou.
Where I turn
And where l• stir
Thou,
Thou,
Thou. •

Ribono shel olom, Ribono shel olom,
Ich vil dir a dudele zingen.
A-ye emtzo-e-cho? Ve-a-ye to
emtzo-e-cho?
Vo ken man dich yo gefinnen?
Un vo ken man dich nit gefinnen?
Vo ich geh iz doch du,
Un vo ich shteh iz doch du. •
Rak du, no du,
Vieder du, ober du.
Is emitzen gut, iz doch du,
V'choliloh shlecht, oy du.
Atoh du,
Ho-yo du,
flo-ve du,
Yihye du.
Moloch du,
Melech du,
.Yimloch du.
Shomayim du,
Eretz du.
Maloh du,
Matoh du.
Vo ich kehr mich,
Vo ich wend mich,
Du!
Du!
Du!
Of the many perpetuated Levi Yit-
Pontinued on next page