"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 . . . "
