Parshat Mishpatim The Importance of Civil Law in the Torah

The Importance of Civil Law in the Torah

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

This pasuk introduces Parshat Mishpatim. The laws, outlined in this parasha, regulate civil matters. These ordinances include regulations that govern responsibility and payment for damages, usury, and the rights of servants.

In the pasuk quoted above, Rashi comments that the word “and” indicates a connection between these laws, ordinances and regulations and those described in the previous parasha. The legal material in the earlier section governs issues of theology and ritual. The “and” indicates that just as the previous material was revealed at Sinai, so too is civil law derived from this same source. Rashi adds that the final section of the previous parasha – Parshat Yitro – discusses the design of the altar. The civil laws of Parshat Mishpatim are intentionally juxtaposed to this section. This relationship is the basis for housing the High Court adjacent to the Temple.[1]

Rashi’s comments are intended to emphasize one of the unique aspects of the Torah. Religion, by definition, includes a theology and a set of rituals that embody the religion’s concept of worship. However, it is often assumed that religion does not have a role in regulating behavior to one’s fellow human-beings. Although it may be granted that religion should include some broad principles that urge moral conduct, it is not assumed that religion should include a specific legal framework that regulates commerce and interpersonal relationships. In this common conception of religion, service to G-d is divorced from an emphasis on the duty to behave ethically. In contrast, the Torah, teaches that moral conduct is integral to religious life. Devotion to Hashem must guide our interactions and conduct in every aspect of our lives.

This concept is explicitly taught in the Talmud. In Tractate Baba Kamma, our Sages teach that one who wishes to be righteous should be conscientious in the observance of these civil laws.[2] Torah observance cannot be limited to the synagogue—or even the home. It must guide all facets of our lives.

To remind us of the Divine obligation to live morally, the civil laws are connected to the ritual laws of the previous parasha with the word “and.” Both are from Sinai. Both share the same origin and importance. As a visual reminder of this concept, the High Court – representing civil law – is placed next to the Temple, the site of worship.

The Piercing of the Indentured Servant’s Ear

And his master shall bring him close to the judges. And he shall bring him close to the door or to the doorpost. And he shall pierce his ear with an awl. And he will be his slave forever. (Shemot 21:6)

The Jewish indentured servant slave serves his master for six years. At the end of this period the master must free the servant. If the servant refuses to leave his master, servitude may be extended until the Yoval – the Jubilee Year. A specific ceremony must be followed to extend the period of indenture. The servant is taken to the court by his master. The master then pierces the ear of the servant at the doorpost.

Rashi explains the meaning of this ceremony. There are two circumstances that can initially lead to bondage. A man steals and cannot make restitution. He is sold into bondage. The proceeds are delivered, by the court, to the victim of the theft. Alternatively, extreme destitution can lead to bondage. In such desperate circumstances a person may sell himself. If, after the initial term, the servant chooses to renew his status as an indentured servant, his ear is pierced. This applies to both situations.

Rashi explains that the piercing of the servant’s ear communicates a symbolic message. The basic message is that the servant was inattentive to the commandments revealed at Sinai. However, the message’s specific details differ according to the circumstances that led to the servant’s descent into bondage. In the case of the person who sold himself in response to poverty, the piercing recalls that at Sinai, he heard Hashem state that we are His servants. This person elected to enter into bondage. His duty to exclusively serve Hashem was disregarded. He placed himself under the authority of a human master. The indentured servant who entered bondage as a consequence of stealing was inattentive to a different commandment. At Sinai we were commanded not to steal. He disregarded this command.

The doorpost is also a symbol. In Egypt the Jews placed the blood of the Pesach sacrifice upon their doorposts. Hashem passed over these homes and did not afflict them with the plague of the firstborn. Through this act of compassion, Hashem earned the devotion of His people. The individual who sells himself into bondage compromises his devotion to G-d. As a slave, he must split his devotion between Hashem and a human master.[3]

Rashi’s moving explanation is appropriate in the instance of a person who willingly sells himself. A person who sells himself out of desperation does not immediately deserve to be punished; desperation drove him to this choice. However, the decision to extend his bondage indicates a moral failing. At this point, his servitude must be stigmatized. The servant must be discouraged from electing to extend his period of service to a human master. At the moment he is prepared to enter into this extended service, his ear is pierced.

However, Rashi’s explanation is difficult to understand in the case of the thief. In this instance, the piercing of the servant’s ear is a reference to his disregard of the prohibition against stealing. This crime was committed long ago—before he entered bondage. If we wish to remind the servant of his crime, the piercing should be done when the servitude is initiated. Why wait until the slave renews his bondage to teach this lesson?

It seems that Rashi is providing an important insight. The thief is sold into slavery in order to pay his debt to the victim. But bondage is not only a practical means to provide restitution to the victim, it is also intended as a punishment for the criminal. The decision of the slave to renew his status indicates that this purpose was not fulfilled. The thief was comfortable with bondage. Servitude had been a positive experience. The status can be continued, but only after a stronger stigma has been attached to the servitude. The ear is pierced to place a mark upon him that signifies he has disregarded the law of the Torah. Hopefully, with this added stigma, servitude will not be as pleasant. The criminal will experience a consequence.

Rashi’s comments are now clear. The piercing of the ear of the thief is a reference to the moral failing in the past. However, this punishment was not originally deemed necessary. The servitude alone should have served as adequate punishment. But the thief did not perceive his status as an indentured servant as a negative consequence. The servant must be punished anew for his crime. This is done by further stigmatizing the status he seeks to perpetuate.

Punishing the Guilty while Protecting the Innocent

And regarding he that did not hunt his victim and the L-rd caused it to happen, I will assign to you a place to which he may flee. (Shemot 21:13)

The punishment for murder is death. If a life is taken by accident, the punishment is exile. Specific cities for exiles are designated throughout the land of Israel. The killer must flee to one of these refuges.

Rashi, in explaining this pasuk, quotes an enigmatic teaching of the Sages. The pasuk refers to accidental killing as an event caused by G-d. Why does Hashem cause such a tragedy? Our Sages responded by constructing a scenario in which the accident is an expression of divine justice. In this scenario, one person murders another, and a second kills another person by accident. In both cases there were no witnesses. Neither crime is punished by the courts. Hashem arranges for the individual responsible for the accidental death to climb a ladder. The murderer is maneuvered by Hashem into a position under the ladder. A rung breaks. The climber falls and lands upon the hapless fellow below. The murdered is killed in the accident. There are witnesses present. The climber will now be required to flee to a city of refuge. Justice has been served. The murderer has been executed. The accidental killer is exiled.[4] What is the message of the teaching? What is the lesson our Sages are delivering through this story?

Any legal system is faced with a conflict. There must be law and order. Criminals must be punished. If there is no consequence for evil, crime is encouraged. Yet, the rights of the individual must be protected. Care must be taken not to wrongfully punish the innocent. It often seems impossible to protect the citizens of society from harm and, simultaneously, respect the rights of the defendant.

The Torah gives priority to protecting the innocent. The laws of evidence are very strict. Two witnesses are required to determine the guilt of a defendant. These witnesses are carefully and completely cross-examined. As a result of these strict requirements, executions were uncommon. It is very likely that this extreme caution resulted in many criminals eluding the justice of the courts. How are the citizens of society protected from these freed criminals?

This is the issue our Sages are addressing. The conflict between the safety of society and the rights of the defendant cannot be resolved. A court system, alone, cannot simultaneously accomplish both goals. A choice must be made. The Torah teaches that the rights of the individual take precedence. The defendant cannot be punished if a possible doubt exits concerning guilt. Yet, we are assured that the guilty will not avoid punishment. Hashem will punish those who are beyond the reach of the courts. We are required to carry out justice to the best of our ability. If we execute this responsibility, Hashem will punish those who escape human justice.

Do Not Curse Judges – Recognizing the Limits of Personal Objectivity

Do not curse judges. Do not curse a leader of your people. (Shemot 22:27)

On the simplest level, the above passage prohibits us from cursing judges. What is the reason for this prohibition? A study of Maimonides’ treatment of this mitzvah provides an obvious and straightforward response. Maimonides discusses this prohibition in his codification of the laws governing the courts.[5] He does not explicitly state a reason for this restriction. However, his general treatment of the law indicates his position. In the prior chapter of his code, Maimonides states that we are obligated to respect judges and others appointed to positions of authority within the community.[6] He then outlines some of the specific behaviors engendered by this obligation. Maimonides juxtaposes this discussion with the restriction against cursing a judge. It seems from Maimonides’ presentation of these laws, he regards cursing a judge as an extreme form of disrespect. In other words, the restriction against cursing a judge is engendered by the obligation to respect judges. This is a reasonable position and the most obvious explanation for the restriction.

Rabbaynu Ovadia Sforno takes a completely different—and quite novel—approach to explaining the prohibition against cursing judges. He begins by asserting the commandment includes the special case in which the court has ruled against a litigant. The prohibition admonishes the disappointed litigant to not express anger through cursing the judge. Sforno continues and explains that it is natural for a person to believe in the justice of one’s own cause. Therefore, the disappointed litigant may feel deeply wronged. The litigant will feel that the judges decided the case unfairly. They deserve to be cursed! These judges have miscarried justice! The Torah admonishes the irate litigant to exercise restraint. One must recognize the influence of one’s own personal bias. True, in the litigant’s view, a miscarriage of justice has occurred. However, one must recognize that the court is in a position to be more objective concerning the validity of one’s own claim.[7]

Sforno’s interpretation of the passage requires further consideration. Why does Sforno insist on focusing on a specific case – the disappointed litigant? We are obligated to respect judges. Of course, this duty applies even when we do not agree with the judges’ conclusion!

It seems that according to Sforno, this commandment is not merely an admonishment against acting disrespectfully towards the court. This mitzvah should not be viewed as one of the many commandments regulating the conduct and reinforcing the authority of the courts. Instead, the mitzvah regulates our personal character – midot. It admonishes us against compromising our objectivity. We are not permitted to assume that we are completely objective about ourselves. We must recognize that the court’s position is every bit as legitimate as our own. In abstract, it is easy to agree with this assertion. The challenge is to recognize this truth even at the moment of anger and frustration. Even at that moment, we must recognize our own personal bias and not overreact. In short, the passage commands us to accept the validity of an objective analysis of our own position – even when the conclusions of this analysis differ sharply from our own.

The Boundaries of Our Reliance on Hashem

If he gets up and goes outside under his own power, the one who struck him is absolved. He shall only pay for his lost time and he shall provide for his healing. (Shemot 21:19)

Parshat Mishpatim outlines many of the laws regulating liability for causing harm to a person or his property. If a person harms another individual he must make restitution to the injured party. Our pasuk indicates two forms of restitution. The injured party is entitled to be reimbursed for his lost wages. The person causing the injury is also responsible for all medical expenses.

The Talmud comments that from this passage we learn that it is permitted for a medical professional to provide medical care.[8] The commentaries are concerned with an obvious problem with this comment. According to the Talmud, it is not self-evident that a physician is permitted to provide treatment to those who are ill. In other words, the Talmud implies that without the express instructions included in this passage, we are to assume that it is not permitted to provide medical treatment! Why would we assume that medical treatment would not be appropriate?

Rashi explains that the comments of the Talmud are not limited to a physician who provides care for an injury inflicted by another individual. Instead, the comments of the Talmud must be understood in a more general sense. The Talmud is telling us that a physician is permitted to provide treatment even in a case in which the patient has become spontaneously ill. Based on this understanding of the Talmud’s comments, Rashi identifies the issue with which the Sages are grappling. Some may assume that a spontaneous illness is an expression of Hashem’s will; Hashem wishes the person to be stricken with this illness. Consequently, the person’s recovery should also be left to Hashem. By providing medical treatment, the physician is usurping Hashem’s role and interfering with His plan. In order to avoid having people make these dangerous assumptions, the Talmud tells us that we are not to make this argument. Instead, the physician is permitted to provide treatment to those whose illness is not caused by the hands of another.[9]

According to Rashi, the Talmud is telling us that we are not to assume that we should leave to Hashem the recovery of a person who is ailing. Instead, it is appropriate to provide medical treatment. However, Rashi’s comments raise an additional question. Rashi is asserting that without the direct instructions of the Torah permitting medical treatment, we would reason that the recovery of the person should be left to Hashem. The Torah tells us that this reasoning is somehow incorrect. But Rashi does not provide any indication of why the Torah does permit the physician to provide treatment. In other words, Rashi identifies the prima-facie reasoning for denying treatment, yet he does not identify the flaw in this reasoning. Rashi only tells us that the Torah rejects this reasoning.

Nachmanides discusses this issue. According to Nachmanides, this discussion in the Talmud provides an insight into the Torah’s understanding of the role of providence. Nachmanides explains that the Torah expects us to conduct ourselves in accordance with the natural laws. The laws of the Torah are constructed to be observed within the framework of the natural law that Hashem created to govern His universe. Torah law does not contradict or ignore the laws of nature. Therefore, it is appropriate to respond to illness through a physician’s medical treatment. We are to live our lives in a manner that is consistent with the natural laws that govern the universe. We are to care for our health properly and medical treatment is appropriate when we are ill.[10]

Kitzur Shulchan Aruch further develops Nachmanides’ comments. He explains that based on Nachmanides’ reasoning, it is incumbent upon a person who is ill to seek the treatment of a physician and it is prohibited to not seek this treatment. He explains that there is a well-known principle that we are not permitted to rely on miracles. A person who does not seek medical treatment violates this principle.

Kitzur Shulchan Aruch explains that there is another reason for requiring a person who is ill to seek medical treatment. This second reason is also based on a comment of Nachmanides. Nachmandies points out the Torah does promise that Hashem will care for those who are righteous. Nachmanides explains that Hashem does perform miracles for the righteous.[11] Kitzur Shulchan Aruch explains that a person who refrains from consulting a physician and instead relies on Hashem’s intervention is making the implicit assumption that he is a righteous person deserving of a miracle. Kitzur Shulchan Aruch points out that this is a shockingly haughty attitude. The Torah distains haughtiness and requires that we conduct ourselves with humility. Humility demands that we do not regard ourselves as tzadikim – as righteous people deserving of a miracle from Hashem.[12]

This discussion suggests an important question. According to these authorities it is appropriate – even required – for a person who is ill to seek medical treatment. What, then, is the role of prayer? If we are expected to conduct ourselves within the laws of nature and we are prohibited from relying on Hashem’s intervention, why pray? When we pray, are we not asking Hashem to intervene – on our behalf – in His natural order? Are we not asking for a miracle?

Rabbaynu Ovadia Sforno discusses this issue in his commentary on Parshat VaYetzai. The Torah explains that Rachel – Yaakov’s wife – was unable to conceive. However, in response to her prayer, she conceived and gave birth to Yosef.[13] Sforno observes that Hashem only responded to Rachel’s prayers after she had endeavored to do everything in her own power to conceive.[14] In other words, Hashem responded to prayers that were accompanied by personal endeavor and initiative – not to prayer alone.

Sforno’s analysis suggests an explanation of the role of prayer. We do not replace with prayer our own efforts to assure our well-being. Instead, prayer accompanies our efforts. We do not pray in place of our own endeavors; we pray for the success of these endeavors.

Rabbaynu David Kimchi’s, RaDaK, comments on a related issue used to further develop this theme. He indicates that although in seeking Hashem’s aid we are asking for His intervention into the natural law, we should seek to minimize this intervention. He explains that when Hashem deems it necessary to perform a miracle, He does so minimally. He also prefers to hide His work. Hashem regards hidden miracles as preferable to astounding wonders. RaDaK cites various examples to prove his point. Hashem commanded Shemuel the prophet to anoint David as the new king of Bnai Yisrael. Shemuel realized that Shaul – the current king – would feel threatened and would make every effort to stop Shemuel from fulfilling his mission. Hashem instructed Shemuel to conceal his intent from Shaul. Hashem would make sure that Shaul did not stop Shemuel from fulfilling his mission. But Hashem preferred to do so by quietly working behind the scenes. He wished to avoid an open confrontation that would require an explicit miracle. RaDaK summarizes his thesis. Hashem prefers to clothe His miracles within the pattern of natural events rather than overtly overturn natural patterns.[15]

Similarly, when we pray, we acknowledge that all of our efforts cannot assure the recovery of the person who is ill. Only Hashem can assure this recovery. But even in seeking Hashem’s intervention, we are required to minimize the necessary intervention. We must make every possible effort to seek the appropriate treatment for the person who is ill and then we pray to Hashem for the success of these efforts. Through combining our personal endeavors with prayer, we are seeking to minimize any necessary intervention.

Why are minimal interventions into the laws of nature preferable to overt miracles? Gershonides deals with this issue and explains that we are troubled by this question because we are impressed by miracles. However, miracles are not nearly as impressive as the laws that govern the universe. We take for granted the majesty of the universe. For example, here I am typing out this article. My fingers move across the keys of my keyboard. I take this function for granted. But let us consider this phenomenon for a moment: Is a finger and its function so simple? Can an MIT engineer create a manipulative machine that is as efficient as a finger? What about duplicating the movements of a simple spider? How many brilliant engineers does it take to make a mechanical spider? And these are just a few of G-d’s most simple inventions. His universe full of wonderful inventions and the laws He created to govern their functions.

Any miracle – at some level – interrupts the operations of the natural universe. Gershonides explains that Hashem did not create the most possibly perfect universe just so He could turn around and interrupt its perfect functioning. Hashem seeks to avoid miracles – which are interruptions of nature. When He must interfere with nature, He does so minimally. And He preserves as much of the existing patterns of nature as possible.[16]

Similarly, in seeking medical treatment, we emulate Hashem. Just as Hashem seeks to minimize His miracles, we are required to minimize our dependency on His interruption into His natural laws on our behalf. We are required to do all in our power to help ourselves. We only seek Hashem’s assistance in assuring the success of these efforts.

[1] Rabbaynu Shlomo ben Yitzchak (Rashi), Commentary on Sefer Shemot 21:1.

[2] Mesechet Baba Kamma 30a.

[3] Rabbaynu Shlomo ben Yitzchak (Rashi), Commentary on Sefer Shemot 21:6.

[4] Rabbaynu Shlomo ben Yitzchak (Rashi), Commentary on Sefer Shemot 21:13.

[5] Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Sanhedrin 26:1.

[6] Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Sanhedrin 25.

[7] Rabbaynu Ovadia Sforno, Commentary on Sefer Shemot 22:27.

[8] Meschet Baba Kamma 85a.

[9] Rabbaynu Shlomo ben Yitzchak (Rashi), Commentary on the Talmud, Mesechet Baba Kamma 85a.

[10] Rabbaynu Moshe ben Nachman (Ramban / Nachmanides), Commentary on Sefer VaYikra 26:11.

[11] Rabbaynu Moshe ben Nachman (Ramban / Nachmanides), Commentary on Sefer VaYikra 26:11.

[12] Rav Shlomo Ganzfried, Kitzur Shulchan Aruch 192:3.

[13] Sefer Beresheit 30:22.

[14] Rabbaynu Ovadia Sforno, Commentary on Sefer Beresheit, 30:22.

[15] Rabbaynu David Kimchi (RaDaK), Commentary on Sefer Shemuel I, 16:2.

[16] Rabbaynu Levi ben Gershom (Gershonides), Commentary on Sefer Beresheit, p 91.