Wednesday, February 17, 2016

Mishpatim - Putting Law into Action

Mishpatim - Putting Law into Action
Last week, I spoke of what are the key principals of the Torah and boiled it all down to Hillel’s famous rule of Judaism on one foot-- Don’t do to your fellow what you don’t want done to yourself. Then, I exploded it all by adding Hillel’s codicil: the rest is commentary-- Go and study.

Too often, we think of Judaism as defined by our denominations:  with a beard-- without a beard, with a kippah-- without a kippah, more Hebrew--less Hebrew, and so on.  But that is not the core.
It is also not a set of platitudes, which is what we often mistake for Judaism.
Look at the Talmud and see that the largest section is devoted to “ Nezikin”- damages. Civil and criminal courts and procedures, definitions of finances and ownership, property rights, and so on. The Mishneh Torah as well as the Shulkhan Arukh  consist to a large part of everyday laws dealing with individual and group rights and obligations. Up until the modern era, we Jews had our own governments and court systems, which the ruling king, duke or Caliph would allow us. It is only with modernity, and the idea of the citizenship of the Jew as a member of another nation, that our legal system dwindled.
I had the privilege, when I lived in Israel in the 1980’s, to help edit and English language translation for the Deputy Attorney of Israel, Prof. Nahum Rakover. His special function was to find precedent in Jewish law for issues facing a modern Jewish society, especially for a concept of “ Mishpat Ivri”, Hebrew Jurisprudence, a secular concept, rather than “Halakhah”.
Why would it be a dilemma? In 1948, Israel was established as a country, and immediately, the issue arose—what law books do you use? The Yishuv had been a British protectorate, so there were British laws on the books, but before that, it had been a Turkish province, so those laws were still on the book. For example, till today, property to title is registered in the “ Tabu”, a Turkish word for land registry. Land is measured in “Dunam”, another Turkish term for a thousand acres, based on a Turkish measure of how much land a man could plow in one day. Certainly the Knesset is structured on the British parliament including acrimonious debates). The Knesset therefore decided that, as new situation would arise that called for new laws, the attorney general’s office would look for precedent in Jewish jurisprudence.

The work I helped with was a textbook for Israeli attorneys, who had no clue or training in Jewish law, as to how Jewish law developed and could be applied to real life situations. The textbook example Prof . Rakover used was taken directly from this week’s Torah portion, Mishpatim., Ex 22. The category of law is usually termed “bailment” or the law of bailees, or, for simpler English, caretakers.
What happens when you entrust your neighbor with your property to be taken care of, as a favor, not for pay and it is damaged or stolen? For example, “ Can I park my Ferrari in your driveway while I am on vacation?”
"If a man gives his neighbor money or goods to keep for him and it is stolen from the man's house . . ."If the thief is not caught, then the owner of the house shall appear before the judges, to determine whether he laid his hands on his neighbor's property.  "For every breach of trust. . . he whom the judges condemn shall pay double to his neighbor.”
This is termed a “ Shomer Hinam”, “a free guard”. In other words, even if you do your friend a favor, not for pay, you still have a liability if you misused or misappropriated the property. However, you have a limit to your obligation to protect and guard. After all, as the saying goes, you get what you pay for.
What if the guard is paid for the service, a “Shomer Sakhir”? For example, you have placed your pure-breed prize winning Yorkie in a “Dog Hotel”.
"If a man gives his neighbor a donkey, an ox, a sheep, or any animal to keep for him, and it dies or is hurt or is driven away while no one is looking, an oath before the LORD shall be made by the two of them that he has not laid hands on his neighbor's property; and its owner shall accept it, and he shall not make restitution.  "
But if it is actually stolen from him, he shall make restitution to its owner.… "If it is all torn to pieces, let him bring it as evidence; he shall not make restitution for what has been torn to pieces.”
The example of animals is used precisely, because there is an effort involved in looking after them and it would be expected that the guard is paid for it. For that reason, as a guard, he is responsible to protect it from thieves, but he is not liable for unpreventable events, such as the animal dropping dead or tripping and falling on its own. If it has been torn by a predator, he needs to bring proof, in other words, whatever is left of the carcass, and he is free of liability.
What about the neighbor who comes to borrow the proverbial cup of sugar, “I will return it tomorrow, with the sugar”, the “ Shoel”.
"If a man borrows anything from his neighbor, and it is injured or dies while its owner is not with it, he shall make full restitution.  "If its owner is with it, he shall not make restitution; if it is hired, it came for its hire.
In other words, if you borrow something from neighbor, you have full liability for whatever happens to it, and you suffer the loss, just as if it were your own property. You have to return the cup of sugar, with the sugar ( or at least, refill the cup).
The only limitation in this situation is that as long as the owner is there at the same time, the owner still has responsibility, since it is under his watch at that time.
But, the last line deals with renter, who pays for the use,” it came for its hire”. You go to Avis or Hertz and rent a sports car.  In other words, the cost of the rent includes in it coverage for damages, or we could call it, the price of doing business, or risk.
When  I was a young student, just starting out, my first introduction to the Talmud was just on this set of laws. Chapter 3 of Baba Metzia, “Hamafkid Etzel Chavero”- One who deposits a property with his friend
It then goes on to determine what happens when later on the thief is caught- to whom does the thief now pay, and how much? The rest of the Talmud text goes on and on to determine where and what is applicable and what not.
To make a long story short, this  is one of the classic examples in which the Knesset  adopted laws on deposits of property, rentals,  storage for pay and so forth designed for a modern society.
Look at some of the cases we have in this portion.
There is a unusual incident, presumably unlikely, of two men fighting when a pregnant woman is caught in the melee: Ch 21:22
"If men struggle with each other and strike a woman with child so that she gives birth prematurely, yet there is no injury, he shall surely be fined as the woman's husband may demand of him, and he shall pay as the judges decide.  "But if there is any further injury, then you shall appoint as a penalty life for life,  eye for eye, tooth for tooth, hand for hand, foot for foot,…
What is the Hebrew for “gives birth prematurely”? What does “no injury” mean? What does “further injury” mean? How does it relate to “ eye for eye”.
If we go to the first translation of the Bible, the Greek, the Septuagint, we read:” she gives birth prematurely, but the baby comes out alive, the one who strikes her must pay some monetary compensation for the pain. But if the baby dies, then it is life for life.” This common English translation above has picked up the meaning form the Greek. In other words, in the Greek translation, causing a miscarriage, an abortion, is “ life for life”, abortion is murder. Hence, this is one of the Catholic Church’s foundations for opposition to abortion, in any and all cases.
But the Hebrew text, as we have it, and as the Rabbis read it, is the opposite. If the baby is “ miscarried”, but the woman is unharmed, then the attacker pays damages for injury to the woman. But if there is “ason”, a disaster, in other words, the woman dies, then it is life for life. Killing of a fetus is in itself not murder, but damage, whereas killing the mother clearly is murder.
Long and short, from this one sentence, and its link to “eye for an eye”, we get the fine distinction between historic Jewish practice and Catholic practice. Jews were notorious in the ancient world for refusing to abandon or kill infants that were born with defects; every baby born was precious, to the extent that the ancient Romans thought we were barbarians, endangering society by preserving individuals incapable of defending the state. Nevertheless, we always recognized the critical distinction between the potential, before birth, and actual, after birth. A mother’s life, not only her physical life, but her emotional life and mental stability could be legitimate grounds for an abortion.
( Rabbinic interpretations of emotional stress were very broad).
Finally, is Jewish law something abstract, something that impacted and was restricted to only us Jews? Is it only vague platitudes that generally infused European civilization through Christianity and into the Moslem world through the Judaic roots of Islam?
If any of you have ever taken out a mortgage to buy a house, you can think again.
American law is a direct heir to English law. Where do we fit in?
When William the Conqueror invaded England, he brought his advisors with him, his Jews. The exchequer had a special Jewish exchequer. The principles of later English economy were founded by these Jewish advisors.
“ Several elements of historical Jewish legal practice have been integrated into the English legal system. Notable among these is the written credit agreement—shetar, or starr, as it appears in English documents. The basis of the shetar, or "Jewish Gage," was a lien on all property (including realty) that has been traced as a source of the modern mortgage. Under Jewish law, the shetar , permitted a creditor to proceed against all the goods and land of the defaulting debtor. Both "movable and immovable" property were subject to distraint. ( Georgetown law Journal, The Shtar in English Law.”)
In England, the seat of the Royal Court for many years was a building called the “ Star Chamber”. It is suggested that the word star was not given for its stars on the ceiling, but for its having at one time been the house in which financial documents were stored. The English of the time of the Norman rulers used the word “ Starr” for the documents, from the Hebrew “ Shtar”, contract.
Don’t get mad at the bank for making you pay your mortgage. Without a sound system of mortgages, the economy grinds to a halt and we go back to subsistence hunting and foraging. Just think of 2008 ( Big Short) when the mortgage system worldwide had a hiccup!
Next time you pay your mortgage statement, just think of it as one example in which Torah laws still impacts our world today.

No comments:

Post a Comment