Nefesh tachas Nefesh vs. Nefesh BeNefesh

Question

Exodus 21:23-24 states:

וְאִם־אָס֖וֹן יִהְיֶ֑ה וְנָתַתָּ֥ה נֶ֖פֶשׁ תַּ֥חַת נָֽפֶשׁ׃

But if other damage ensues, the penalty shall be life for life,

עַ֚יִן תַּ֣חַת עַ֔יִן שֵׁ֖ן תַּ֣חַת שֵׁ֑ן יָ֚ד תַּ֣חַת יָ֔ד רֶ֖גֶל תַּ֥חַת רָֽגֶל׃

eye for eye, tooth for tooth, hand for hand, foot for foot,

Targum Onkelos translates the verses pretty directly:

ואם מותר יהא ותתן נפשא חלף נפשא: עינא חלף עינא שנא חלף שנא ידא חלף ידא רגלא חלף ידא

Whereas in Deuteronomy 19:21 it says (although it's a different context):

וְלֹ֥א תָח֖וֹס עֵינֶ֑ךָ נֶ֣פֶשׁ בְּנֶ֗פֶשׁ עַ֤יִן בְּעַ֙יִן֙ שֵׁ֣ן בְּשֵׁ֔ן יָ֥ד בְּיָ֖ד רֶ֥גֶל בְּרָֽגֶל׃ (ס)

Nor must you show pity: life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.

Targum Onkelos translates the verse similar to how he did in Mishpatim:

ולא תחוב עינך נפשא חלף נפשא עינא חלף עינך שנא חלף שנא ידא חלף ידא רגלא חלף רגלא

The verses in different contexts discuss the same body parts, yet in one place it says א תחת א, and in the other it says א בא. In light of Onkelos translating the ב prefix as תחת, why the inconsistency? Why not use a ב prefix in both places? Or תחת in both places?

Answer 1

Rav Hirsch on Mishpatim 21:25 says that the term תחת is to mean compensation. However, in Shoftim, it is talking about the retribution due the false witnesses rather than the actual case of what is owed by the perpetrator of the injury.

The basic meaning of תחת is below, beneath (adv.) and under (prep.). It can accordingly only express the idea "for", in the sense "instead of", and is accordingly the proper expression for compensation.

...

In any case תחת, in the vast majority of cases, indicates compensation, rather than penalty or punishment, and עין תחת עין etc., means nothing else but, he has to restore an eye for an eye, he has to give the one whose eye he has put out, another eye. But by putting out the eye of the 'doer', the victim in no wise gets his eye back. But as no man can restore an eye in nature, the law can mean nothing else but "full compensation for the eye".

We then see from Rav Hirsch the difference in עין בעין

Shoftim 19:21

In Ex. XXI, 23-23, and similarly in Levit. XXIV, 20 where the legal consequences of actual injuries are discussed it says עין תחת עין וגו, תחת, instead of, compensation, which, as we worked out there, is monetary indemnification which has to be paid. But here, where the injury was only attempted to be brought about, but had not actually been inflicted before the witnesses had been convicted of giving false evidence, there can be no question of indemnification for damage, loss, or penalties incurred, the consequences falling back on the witnesses is pure retributive justice; hence it does not say here תחת, but the more generalizing term - ב. But inasmuch if the false witnesses have testified in a case demanding damages involving money they do have to pay money, that too is pure retribution, as, if the charge of having caused the loss or injury of a limb were proved, the accused would not have to suffer the loss or injury of his own limb, but would have to pay indemnification, that is what falls back on the false witness who attempted to bring that about.