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Mishpatim 5773

by Rabbi Yaakov Grunewald

The Sidra of Mishpatim, which means social laws, is a logical sequence to the 10 Commandments which precede it. In fact, it is a commentary on them. The mediaeval commentator, Nachmanides, says that it is, particularly, a continuation of the 10th commandment which commands us not to be envious. If a person does not have any sense of social order and justice, there is nothing that would stop him from being envious. As a consequence, he will take for himself things that do not belong to him. Therefore, the first thing that the Jewish people have to do in order to ensure complete compliance with the 10 Commandments is to set up courts to administer the law and also to teach uprightness and honesty.

It follows that, in this context, the term Mishpatim has a distinct legal connotation and is connected with the term ‘Shofet’ which means a judge. In later times, our rabbis applied the term Mishpatim to all Torah laws, except those that we cannot comprehend by human reason, which they called Chukkim.

Since the term Mishpatim is connected with law courts, Jewish tradition teaches that the first sentence of the Sidra contains the mitzvah to set up Jewish courts and place before them all matters which require litigation and judgement. It is a sin for two Jews, who are in dispute, to use non-Jewish courts. Throughout our history this prohibition was regarded with great seriousness. This is not surprising since all our laws are religious in nature and, to emphasise this point, the Sanhedrin, the ancient court, was situated next to the altar. The same applied to other nations’ courts, which were also essentially religious. When Jews used these, instead of Jewish courts, it was deemed a mark of recognition and admiration of idolatry and desecration of God’s name. Today we have secular courts, but we still have to be very careful to use ordinary courts only when it absolutely essential or when we have no alternative. When it is at all possible, members of our community should use the Beth Din of their town to settle their internal disputes. We should always be aware that the Dayyanim, (the judges of the Beth din) who are immersed in Torah learning, have a unique perspective. Many people today bring their cases before the London Beth Din, which they find efficient and trustworthy.

The first law in this Sidra deals with the institution of slavery. In view of our rabbis’ understanding that the first sentence is a reference to the activities of Jewish courts, our Rabbis say that it implies that the first law refers to a case where the court was forced to sell a Jewish thief into slavery, because he did not have the funds to pay restitution.

The Sidra begins with the law of slavery. This parallels the first commandment, which is the divine declaration that the Almighty took us out Egypt, which was the home of slavery. For this reason, the commandment has supreme religious significance.  The Torah imposes strict regulations with regard to the acquisition of Hebrew slaves, who can only serve for six years and have to be freed in the seventh year. The seventh year of freedom links it directly with the law of the Shabbat, the seventh day, when we are also commanded to grant freedom to everyone who works for us, including slaves. , I believe that in this law we see that the Torah tried to humanise the institution of slavery; transforming it from a very degrading occupation into much more dignified employment. It limited the period of the slavery of a Hebrew slave to 6 years. In this way the slave felt much more human.

We can see that the Torah regarded the institution of slavery as ethically abhorrent, from the law which follows in chapter 21, verse 16- i.e. the crime of kidnapping a person and selling him into slavery. The Torah prescribes the death penalty for this crime. Some commentators ask why the Torah mandates such a severe punishment. Why don’t we sell the perpetrator as he had done? It does not seem to follow the principle of measure for measure! The answer is that sometimes the Torah deems it necessary to apply punishments which are not in accordance with this principle. When our own courts have to carry out the death sentence, the principle of measure to measure cannot always apply. Human beings can never be sure how to measure a crime. We trust that the Torah knows.

When the Torah was given at Mount Sinai other codes were already in existence. They have been discovered in various archaeological excavations over the last two centuries. The codes that have the greatest number of similarities with the Torah are the laws of the kingdoms of Eshnunna and of Babylon. They were both composed in the ancient language of Akkadian in the old Babylonian period. Eshnunna was a small Sumerian kingdom, North of Baghdad, which existed between the 20th and 18th centuries BCE.              It is interesting to compare some of its laws with the laws of the Torah. There are some similarities but important differences. In chapter 21 verse 29 we have the law concerning a dangerous ox that has gored a human being on at least three occasions, on consecutive days. The owner had been warned to control it, but failed to do so. If the ox gores again, for the fourth time, and kills a man or a woman, the Torah demands both that not only should the ox be put to death by stoning, but, also, that the owner should suffer the death penalty. Our rabbis interpreted this penalty as being a divine punishment, called, in the Talmud: “Mittah Bidei Shamayim”, literally meaning ‘Death by Heaven’ which is familiar to us from the confession which we recite on Yom Kippur. The owner is liable to this death penalty because his negligence caused the death of another human being. He didn’t murder someone with his own hands but he did do so indirectly. Death by Heaven is more severe than the punishment of Karet, but less severe than corporal punishment by the human court. The proof that we are dealing here with a divine punishment, and not execution, is in the fact that the Torah mandates that the court should force the owner to pay ransom for his life, ‘Kofer’, in order to be exempted from the divine punishment. When we compare it to a similar law in the Eshnunna code, we see that the Torah was more severe, but we can also understand the monetary ransom.  The Eshnunna Code mandates only monetary compensation, which some of writers regard as more compassionate. But this is incorrect. It is a very light punishment for causing death by negligence. By showing that the negligent owner actually deserves the death penalty by Heaven, the Torah demonstrates its compassion for the victim, which must be more just.

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