Parshat Mishpatim 6

“And these are the laws that you should place before them.” (Shemot 21:1)

Parshat Mishpatim describes many of the civil laws of the Torah. The Talmud explains in Tractate Gitten that we are required to resolve disputes regarding civil law in Jewish courts. We are not permitted to submit such disputes before non-Jewish civil courts. Rashi elaborates on this requirement. He explains that there are areas of civil law in which secular law may closely follow Torah law. In these cases, submitting a dispute to a secular court will produce a decision that is consistent with Torah law. Nonetheless, one may not take the dispute to a secular court. Rashi does not explain the reason for this restriction.

Why is it prohibited to submit any civil issue to a secular court? Assume that one is certain that the laws of this court are consistent with the Torah. What is wrong with availing oneself of this secular court? Maimonides discusses this issue in his Mishne Torah. He explains that one who submits a dispute to a secular court is considered wicked. He is a blasphemer and has raised his hand against the Torah of Moshe our master. This is a very serious condemnation. It seems extreme. The term blasphemy implies a denial of a central principle of the Torah! How has this person blasphemed? Furthermore, how does one who utilizes a secular court “raise his hand against the Torah”? In order to understand Maimonides’ comments a brief introduction is required.

Maimonides defines, in his commentary on the Mishne, the fundamental principles of the Torah. One of these principles is that the entire Torah was revealed to Moshe. Every law of the Torah was given to us from the Almighty. We are required to uphold this conviction. However apparently, this conviction is not merely an intellectual commitment. The principle also demands specific behaviors. We must act in a manner consistent with the conviction that the Torah is a revealed truth. Any behavior that implies otherwise is prohibited.

We can now understand Maimonides’ comments regarding secular courts. We received the Torah from Sinai. It is a revealed truth. Therefore, it is a perfect system of law. This status applies to the laws governing ritual. It also applies to the civil law of the Torah. A person cognizant of the Divine origins of the Torah would not willingly submit oneself to the jurisdiction of another system. This person would only wish to be judged by Torah law. Abandonment of Torah law ­ even in a civil matter ­ implies denial of the Torah’s status as a revealed truth. It follows that submission of a civil dispute to a secular court is prohibited. One who does seek justice in a secular court has raised his hand against the Torah of Moshe. This is regarded as blasphemy against the Divine origins of the Torah.

“If he came alone, he will leave alone. If he is married, his wife leaves with him.” (Shemot 21:3)

This pasuk discusses the eved ivri ­ the Jewish slave. This law applies to a person who steals and cannot make restitution. The court has the authority to sell the person into slavery in order to pay his debt. The master of the slave ­ the eved ­ is permitted to give the servant a non-Jewish maidservant as a wife. Any children resulting from this union are the property of the master and are born into servitude. Our pasuk restricts the rights of the master to provide the Jewish eved with a non-Jewish maidservant. If he is already married, at the time that he enters into servitude, the master may provide the eved with a maidservant. However, if he is not married, the master may not give the servant a maidservant wife. This lesson is communicated through the phrase, “if he came alone, he will leave alone”. The meaning of this phrase is that if the entered servitude unmarried, he must remain unmarried. The master may not provide the eved with a maidservant. The usual term for “alone” is levad. Our pasuk does not use this term. Instead, it uses the term begapo. The commentaries differ on the exact meaning of this term. Rashi maintains that it means, “with his garment, alone”. In other words, if he entered servitude with his garment, alone ­ without a wife, he may not be given a maidservant wife. Rabbaynu Avraham ibn Ezra disagrees with this interpretation of begapo. He asserts that the term means with his body. In other words, if he entered slavery with only his body ­ without a wife, the master may not provide him with a maidservant.

We can more fully understand the dispute between Rashi and ibn Ezra through analyzing this prohibition. Let us first consider Rashi’s interpretation. Rashi maintains that begapo means with only his clothing. It seems that the term alludes to poverty. What is the relationship between poverty and the restriction against providing the eved with a maidservant? The Torah regards servitude as an undesirable state. It is permitted under specific circumstances. However, it is not encouraged. The Torah provides a deterrent through eliminating any positive elements from servitude. Consider a person entering servitude without a wife. His life is incomplete. In this sense, he is impoverished. The master cannot provide this eved with a wife. This would improve the servant’s life. He now would have a wife. The servant would benefit from his servitude. This cannot be permitted. Ibn Ezra seems to understand the issue differently. According to him, begapo is a direct reference to the servant entering servitude without a wife. Basically, the pasuk is stating that the master may not provide the eved with a maidservant as a sole wife. We must consider the difference between a maidservant who is a sole wife and one who is a second wife.

If the slave enters servitude with a wife, he already has a companion. He is already bound by obligations to his existing wife and family. The master may provide this eved with a maidservant. In contrast, an eved without a family, lacks this foundation. He is unconnected to any existing family structure. If he is permitted to live with a maidservant, this union will become his family. The Torah allows the eved to live with a maidservant. However, apparently the Torah does not wish to encourage a strong bond between these partners. This is because she lacks the complete sanctity of a Jew. If the eved has an appropriate wife, we can hope that a strong bond will not develop with the maidservant. However, without a pre-existing family, the eved cannot live with a maidservant. This is because he can easily develop a permanent relationship with her.

“Do not follow the majority to do evil. Do not speak up in a trail to pervert justice. A case must be decided on the basis of the majority.” (Shemot 23:2)

The last portion of this passage is easily understood. In deciding a legal issue, the court must follow the opinion of the majority of its members. For example, assume a person brings a question of halacha before the court. The court discusses the issue and the judges differ on the resolution of the issue. The members of the court vote. The issue is decided according to the majority opinion. The law also applies to civil disputes. For example, two litigants bring a case before a court. After hearing both sides, the court votes. The decision of the court is determined by the majority position. The first portion of the passage is more difficult to interpret. The pasuk tells us not to follow the majority to do evil. This is an odd statement. Of course, it is reasonable to assert that we should never act wickedly. A court cannot willingly issue an inappropriate decision based on the opinion of the majority. What is the case to which this law is applied? Obviously, the court would never intentionally act wickedly! In what case does the court not follow the majority? The Torah She’Be’Al Peh ­ the Oral Law answers this question.

Our Sages explain that the opening portion of the passage deals with capital cases. In these cases, if the defendant is found to be guilty, he or she will be executed. Our Sages also explain that the term “evil” in the passage should not be interpreted literally. Instead, it refers to a guilty verdict. In other words, the passage tells that a simple majority is not sufficient to execute a defendant. What is the criterion that must be met in order to execute a defendant? A majority of at least two judges is required. In short, two messages are communicated in these sections of the passage. First, the courts decisions should generally follow the majority opinion. Second, the passage establishes an exception. The execution of a defendant requires a majority of at least two judges.

The Baal HaTumim ­ an outstanding scholar ­ was once challenged on the basis of our passage. Our pasuk tells us to follow the majority opinion. It seems reasonable to apply this principle beyond the confines of court cases. In fact, the Talmud does apply this principle to other areas of halacha. This means that other decisions as well should be based on this principle. The opinion of the majority should be followed. The Jewish people are a minority. Even among the Jewish people the Torah is not universally accepted and observed. Other religions can rightfully claim larger followings. Therefore, should we not abandon the Torah based on the principle in our passage? We should follow the majority opinion and accept a more popular religion! The Baal HaTumim responded that this question is based upon a misunderstanding of the principle in the passage. The pasuk does not suggest that we follow the majority in areas in which we have definite knowledge. The pasuk deals with a court case in which the guilt or innocence of the defendant is in doubt. In order to resolve the doubt, we follow the majority opinion. However, we are not swayed by the majority in areas in which we are certain. For example, assume a person knew that a certain food was not kasher ­ permitted. A group approaches this individual and claims the food is permitted. The person cannot eat something that one knows with certainty is not kasher. It is irrelevant that a large group claims the food is permitted. Personal knowledge cannot be denied. Similarly, we know that the Torah is true. Therefore, regardless of the numbers that deny its authenticity, we cannot abandon the truth.

Rav Elchanan Wasserman also argues that the question is based upon a faulty understanding of the passage. The passage requires us to follow the majority opinion of a group of judges. Judges are individuals qualified to render a decision. The judge’s knowledge and wisdom endows his opinion with credibility. The opinion of a simpleton is not given credence. Rav Elchanan argues that religious issues cannot be evaluated on the basis of popular appeal. The masses of humanity do not make religious decisions as a result of thorough analysis. Only scholars of religion are credible judges. Rav Elchanan points out that the Torah has been scrutinized by countless scholars. The Sages of the Talmud and of subsequent generations have subjected every detail of the Torah to painstaking analysis. No religion has been subjected to such thorough scrutiny over a period of centuries. Therefore, application of the principle in the passage only confirms the authenticity of the Torah.

There is an even more basic flaw in this challenge to the Torah. We do not follow the majority because we logically assume the majority is correct. Were majority rule a logical principle, there would be no need for the Torah to mandate this practice. The court’s decision is determined by majority opinion because the Torah commands this practice. Without the Torah’s stipulation we could not follow the majority. Without this stipulation, cases before the court would only be resolved through a unanimous decision. Therefore, it is completely circular to argue that the Torah should be abandoned because of the beliefs of the majority of humanity. Without the Torah, there is no basis to grant any credence to the majority. Only because of the Torah’s stipulation is majority opinion recognized as relevant.

 

Mesechet Gitten 88:b. Rabbaynu Shlomo ben Yitzchak (Rashi), Commentary on Sefer Shemot 21:1.

Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Sanhedrin 26:7.

Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Commentary on the Mishne, Mesechet Sanhedrin 10:1.

Rabbaynu Shlomo ben Yitzchak (Rashi), Commentary on Sefer Shemot 21:2.

Rabbaynu Shlomo ben Yitzchak (Rashi), Commentary on Sefer Shemot 21:3.

Rabbaynu Avraham ibn Ezra, Commentary on Sefer Shemot 21:2.

Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Sanhedrin 8:1.

Rav Elchanan Wasserman, Kobetz Ma’amarim, Essay on Conviction.