Mishpatim Creating a Just Society
In the good old days of Rabbis, if there ever was one, the Rabbi was not as he is today, a Preacher and service leader, but the “ Final Decider”, the “Buck Stops Here” in the Jewish community on all decisions of Halakhah, of Jewish law.
So, the story goes, two men come to the Rabbi with a suit . Says the plaintiff,” So and so, the “gonif” owes me 200 rubles and this is the proof, here are the documents,” .He then makes his case.
The Rabbi nods, You are right!
The Rabbi calls on the defendant,” Respect Rov, That so and so, that “gonif” has no claim at all and I owe him nothing, and this is the proof, and here are the documents.
The Rabbi nods again,” You are right!”
All at once the Rabbi’s assistant, the Shammes, has been listening patiently till now, blurts out,” But Rabbi,” How could they both be right.?!”
And the Rabbi nods, “ You, too, are right!”
All joking aside, at the core of Judaism is the need to make critical decisions, decisions about who is right and wrong, what is permitted, what is forbidden, not just in the obvious things we think of, in kashrut or Shabbat, but in the moral and legal realm as well. That is all wrapped up in the framework of what we call “ Halakhah”, which we can translate literally, as “Going”, or figuratively, we could say,” if you talk the talk, you gotta walk the walk.”
No sooner do we finish with the revelation of God at Sinai in the previous portion, Yitro, with its grand vision in thunder and lightning, that we come to this portion , Mishpatim, which forces us to deal with very mundane issues, issues that don’t belong in heaven, but belong on earth, in every day dealings between people.
We are presented with a broad mix of what are called “ Case laws”, so to say,” In case of a, then b”, what is termed “casuistic law”; this is in contrast to the absolute statements we have in the Ten Commandments, termed “apodictic law.” So we have examples from the treatment of male slaves as opposed to female slaves, issues of miscarriage as a result of a brawl, which leads the famous “lex talionis”-“Eye for Eye”--- what are grounds for self-defense, what are the conditions for making restitution in case of theft, and so on. Many shirt and succinct cases that lead to mountains of Rabbinic debates.
As you can see from this, although we would like to see Judaism summarized into a simple phrase,” al regal achat”, while standing on one foot, like “Love your Neighbor”, we see that our Torah wasn’t written for people seeking simple answers.
From a Jewish perspective, law and justice stand at the very center of the universe. They stand at the very center of our entire concept of religion. That means that legal procedure is itself sacred, although we may sometimes be perturbed by what seems to be nit-picking.
We Jews are a people of law, which is often difficult for people of other religions to comprehend. Very often, we are decried as a religion of law, as opposed to a religion of love, a very common historic Christian polemic against Judaism, but it is in the loyalty to the idea of law, whether it be the religious obligations, or the social obligations, that a Jew gave expression to love of God and love of neighbor.( Frankly, there is also a lot of Canon Law in Christianity).
Even among modern Jews, who obviously do not observe Jewish law, even in such a setting, the concept of what is accepted and what is not is important still holds sway.Even if I wish to do whatever I will, I still want to know if it is kosher or treif, and even if the modern Jew enjoys the treif, he still wishes that the Rabbi would pasken, declare, it kosher.
Rabbi Harold Schulweis described Jewish life as a tennis game, with halakhah as the net between the courts. You can raise the net, or lower the net, but the net must still be there. Once you get rid of the net, there’s no game, since then every move is over the net. Our concept of law, of halakhah, is the net in the game of life.
In particular, the net of life must be the net of civil and criminal law. It goes back to Abraham. God expressly states that he must declares his plans about the wicked cities of Sodom and Gomorrah because he knows that Abraham will instruct his descendants in justice.
We Jews have a penchant for going to bat even for the villain who doesn’t deserve it. We think back to Abraham , our ancestor, who goes to war on behalf of the people of Sodom and Gomorrah, not only to free his nephew Lot but also to free them from an aggressor nation. Yet these are the same villains of the infamous Sodom and Gomorrah.
Next, he pleads for them with God, Hashofet Kol haaretz lo yaaseh mishpat? Will not the judge of all the earth not do justice?
Even these, villains and miscreants deserve due process of the law , and if just some case could be made for them, just the presence of a minyan of decent people, then they should be spared. (Of course, when it comes to his own son, he keeps quiet—you see, we don’t always have the sense to speak up for ourselves!)
We see this thread run throughout the Torah.
Even before Moses can receive the Torah at Sinai, he needs to establish a system whereby he delegates judicial authority to respected leaders form among the people.
In Deuteronomy, we are presented with the dictum Shoftim ve shotrim titen lecha—“You shall appoint magistrates and officials for your tribes.” Before anything else may be done, the very first act must be the establishment of a legal and judicial system--without it, the children of Israel cannot function. The Torah then declares: Tsedek Tsedek tirdof Lemaan tihyeh veyarashta et haarets asher Adonay noteyn lecha-
“Justice, justice, shall you pursue, that you may thrive and occupy the land the Lord has given you.”
Later, the prophets would say: Vayigal camayim mishpat. Let justice well up like the waters and righteousness like a mighty stream.( Amos 5:24) This phrase served as a declaration by Dr. Martin Luther King Jr in his great speech on civil rights.
It is true that law and justice appear as values in other ancient societies—the ancient Babylonians, the Greeks, the Romans, all understood that justice needed to be established. But how did they look at it? As a mechanical necessity! Plato’s Republic is an attempt to set up the grounds for a just society and he begins on the theme of what is justice and comes up with his own explanation. As you read it, though, you sense that while his discussion makes good sense, it is missing the passion and power. Justice comes from reasonability for him, but for Moses, the Prophets and the Jewish people, justice is powerful, overwhelming, “yigal kamayim” like a tidal surge of the ocean, driven by the force of God.
Let’s go back to one of the cases presented in Mishpatim, that of “ Makeh ish”- One who strikes his fellow and causes death,” Mot Yumat”- he shall be excecuted. How was this to be decided? What proof, what evidence, what procedure?
Rabbinic jurisprudence was very exacting, especially in the case of murder. No violation of law was more horrendous than that of murder--not even the other two cardinal sins of idolatry and adultery came near--for as the sage Maimonides said, Murder destroys the very civilization of the world.(Yishuv Haolam) In other societies of the time, not all people were legally equal and one could easily buy his way out of a murder charge by paying off the family, especially a nobleman who could buy off the death of a peasant. It is even retained explicitly in the Quran, which paraphrases our “eye for eye” but unlike the Torah, allows for “ blood money” to be offered,” If one is pardoned by the victim's kin, an appreciative response is in order, and an equitable compensation shall be paid.”
This idea of buying off murder is unconscionable in Jewish thinking.
Nevertheless, and because execution was deemed the only proper punishment, the legal procedures for a murder case were so stringent, that it became nigh impossible for a court to convict one of full premeditated murder.
It is no wonder then, that Rabbi Akiba declared that a court that put someone to death once in seven, or even once in seventy years, was a bloody court. However, even as the Rabbis made the application of the death penalty almost impossible, they could not remove it from the books. This must remain, in principal, on the books of any civilized society, even if it is never carried out in fact, because the value of the human being must be made the one sacrosanct principal of all societies.
There are many other examples that one can go on, from this and other issues raised in this portion and parts of the Torah. Some 3300 years of Jewish jurisprudence can be applied to modern issues like internet privacy ( addressed , in principal, by Rabbenu Gershom a thousand years ago) or intellectual property rights, covered in Rabbinic law under the concept of “ Gnevat Daat”. “ Theft of Mind”, which applies not only to deception in business practice but also to claiming to be the originator of an idea stolen from someone else .
I have digressed somewhat, but you can see, from these cursory examples, why the Torah and Jewish teachings would want to define for us what are limits and boundaries of our actions but put less emphasis on our minds and beliefs. As the Rabbis defined it, “No two human beings can think alike.” Hence, so much of an emphasis on “Mishpatim”, or laws, civil and criminal, as well as ritual, because all actions have consequences and while no to humans think alike, all humans ache alike.
There is a Latin phrase--fiat iustitia et periat mundus--let justice be done, even if the world perish. Justice, it would seem from that, is incompatible with the real needs of the world. There is a seemingly comparable statement in Hebrew Yikov hadin et hahar -the law shall go through even a mountain. But justice is not an end in itself, as in the Latin phrase has it, but rather, it is the instrument on which the world survives, and does not perish, "The Rabbis declared:The world exists because of din, emet, veshalom--Judgement, truth, and peace. Judgement, carried out in truth, leads to peace, and to the salvation of human civilization and existence.