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26 Shevat 5760 - February 2, 2000 | Mordecai Plaut, director Published Weekly








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Opinion & Comment
Choshen Mishpot

by L. Jungerman

"And these are the judgments -- `And' comes to supplement the first ones. Just as the first judgments were from Sinai, so are these from Sinai."

There is a common denominator to all the laws enumerated in Parshas Mishpotim. It is obvious that all are divinely ordained judgments. They are very different from the human logic which underlies the legal codes and systems one finds in civilized countries.

The outstanding characteristic in Torah law is the attitude towards the guilty person. In mortal legal eyes, lehavdil, the accused is the enemy of society and sometimes, the enemy of all mankind. In the eyes of the Torah, however, the guilty one is diseased, sometimes critically and even mortally so, and his sentence is passed accordingly.

Let us take the thief who is castigated in every society, punished mercilessly, put in the stocks, if not literally, then socially, and cast behind lock and bars in the company of seasoned, hardened criminals. There he is left to expiate his debt to society through incapacitation, until his personality is completed demoralized, shattered beyond repair, and he emerges sicker than he ever was to begin with.

According to the Torah, a thief is sent to a special education course. He is sold because of his theft under the conditions that are best described by the gemora itself: "Whoever buys himself a Jewish slave, has bought himself a master." In his new home, he will learn that in order to earn a decent livelihood, he must work, and not steal what does not belong to him.

Here, too, his divine image as a human being is preserved. He must not be overworked or abused in any other way; he is expected to perform only those tasks for which he was purchased. His master must give him preference over his own self so that if he owns only one pillow, he must give it to the slave. After six years of servitude, the slave is awarded a share of his master's bounty so that he can begin life on a good footing.

The fact that the punishment is not for the purpose of punishing or even as a deterrent on the simple level, but is designed as a form of education and rehabilitation is what dictates all the particulars of the sentence. The thief who had no consideration for his neighbor and stole an animal from his flock, or perhaps the only animal from which he derives his livelihood, has committed a heartless act. The shock of discovery experienced by the victim is a heartbreaking sight to see.

While fining the thief for having caused a financial loss to his fellow man, the Torah still considers the `unpleasantness' experienced by the thief in his act. Poor fellow was forced to carry the sheep on his shoulders, a demeaning effort.

Was forced? Unpleasant? Why did he have to go and steal? Yes, that is the natural human reaction. But "these are the judgments" presents law as G-d- given from Sinai.

At Sinai, matters of punishment are considered differently and revenge has an entirely different meaning. At Sinai, the Torah plans a tactic of dealing with the victim, the stricken `son,' but also with the criminal, the errant `son' -- to educate him and improve his ways. He is also one of G-d's children, a human being. And the Torah is concerned with providing the ultimate paternal care for both sons.

The Alter of Kelm is said to have pointed out the fact that the first judgment presented to the Jews as a corollary or succession to Sinai was that of the thief sold as a Jewish slave. Is this not like the devoted mother who lavishes much more attention over her `special' child -- who needs more of her attention -- than over the other children who fill her with pride and joy!

The sinner whose punishment is the ultimate, death, is not persecuted by the Torah code of law. He is regarded as terminally ill. Nothing can cure him save death.

But death is administered with mercy. "All those sentenced to death by the beis din must confess, because whoever confesses has a portion in Olom Habo. If he does not know how to confess, he is charged to say, "May my death be an atonement for all my sins" (Sanhedrin 43). He is not presented with a Kohen before whom to confess. Rather, the very beis din that sentenced him, who treated him with cruelty, as it were, is responsible for his confession and atonement. The judges are concerned for him, and his punishment is a reflection of this, too. "Would that his death be his atonement" (Midrash).

If a person is sentenced to lashes, it is because he blithely and intentionally transgressed an explicit prohibition of the Torah. He was warned, threatened with punishment, but ignored the admonishment and may have even mocked those who gave it. He deserves a punishment, true. But if he is overly degraded through the lashing, the beis din must call a halt. Why? "And your brother will be degraded before your eyes -- and so is he degraded" (Makkos 22). Everything is weighed and measured to the last pinpoint. Just like one weighs a potent medicine by the milligram. This is no punishment, it is healing. And in healing, exact measures are critical.

And on the day following the lashing: "And your brother was degraded before your eyes -- and because he suffered the lashes, he is reinstated as your brother" (Makkos 23).

There is no such concept as a criminal record or a sign of Cain on one's forehead. He is reinstated as your brother in every way, with all that entails. He has completed a course in special education and now needs the tools with which to regain his previous vigor and status.

The gemora establishes: "A Jewish slave who is a Kohen may not have his ear pierced [as a sign of indenture until the jubilee year] since this will maim him permanently."

So what? Is this so terrible? Says Rabba bar R' Shila: The Torah calls for the slave to `return to his family.' This means he must return to the family status [and for kohanim, this means they must avoid permanent blemishes in order to be fit for the avoda] (Kiddushin 31). He does not return home as a rehabilitated thief. He returns to his family! To his station! To serve again in the Beis Hamikdosh! Everything is back to normal, bygones are forgotten.

These are the laws of the Torah from Sinai. That selfsame Sinai of "You shall love your neighbor as yourself" and "You are children to Hashem your G- d."

"The portion of judgments was juxtaposed to that of the altar to teach you that you must place the judges near the altar" (Rashi). The laws must be administered through the influence of the nearby altar. The sacrifices and the incense is G-dly worship, which must be anchored in the heart.

"And you shall place the choshen upon Aharon's heart." The intellect is not enough; ability is not sufficient. The repository site of justice is in the heart. The absurdity of human justice which presumes to usurp divine justice is warped injustice that cries out to heaven. "Where there is `justice,' there is wickedness" (Koheles 3:16), which refers to mortal justice that is not from Sinai.

"And who is a great nation which possesses just statutes and judgments as does this entire Torah . . . "

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