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By Rabbi Avraham
Fischer. A publication of the Orthodox Union in cooperation with the Seymour
J. Abrams Orthodox Union Jerusalem World Center |
Parshat
Mishpatim
February 1, 2003
Most of the commandments in MISHPATIM discuss the functioning
of the Torah court, which must render judgment on the basis of the truth:
From a matter of falsehood (SHEKER) shall you keep far; and the
innocent (V’NAKI) and the righteous (V’TZADDIK) do not slay, for I will not
justify
(LO ATZDIK) the wicked (RASHA) (Shemot 23:7).
The antipodes of truth and falsehood, guilt and innocence are
essential to the administration of justice.
So, why does the verse use two synonyms for the guiltless?
Rashi (based on Mechilta Kaspa, 20 and Sanhedrin 33b; see Rambam, “Laws of the
Sanhedrin” 10:2,9; 11:1,4) states that this exhortation is directed towards a
court judging a case involving capital or corporal punishment:
How do we know that if a person leaves the court condemned and
one [of the judges] says, "I have something to say in his favor," he is brought
back? for Scripture states, “and the innocent . . . do not slay,” and this
even though he is not righteous, namely, that he was not acquitted in court;
nevertheless, he is undeserving of the penalty of death, for behold you are able
acquit him. And how do we know that if a person leaves the court acquitted and
one [of the judges] says, "I have something to say to show him guilty," he is
not brought back to court to condemn him? Because Scripture states, “and the
righteous do not slay,” and this one is righteous, in the sense that he was
acquitted in court.
The accused might conceivably be NAKI without being a TZADDIK,
or vice versa, so both words are necessary.
The Mechilta brings other applications of the precision necessary in judgment:
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One witness testified that he saw the accused worshipping the
sun, and another testified that he worshipped the moon. Even though they agree
that he committed idolatry, we do not combine their testimony, and it is
invalid.
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A man wielding a sword is seen chasing another and shouting
that he will kill him. Witnesses warn him not to commit murder. Then the two
disappear into a house. When the witnesses arrive, they find the pursuer
holding the sword, now dripping with blood, standing over the other man, slain
by a sword. Despite the circumstantial evidence, the
witnesses cannot testify that they witnessed a murder. The accused in both
cases are not innocent, but they are nonetheless righteous: the law cannot
condemn them.
Bechor Shor (R. Yosef Bechor Shor, born c. 1140) explains the
difference between these terms: NAKI means one who is free of the sin. TZADDIK
means one who is guiltless according to the law; for example, if he committed
the sin without witnesses and without warning, he is acquitted by the law. This
approach is also found in Chizkuni (R. Chizkiya ben Manoach, mid 13th Century)
and Malbim (R. Meir Leib ben Yechiel Michael, 1809-1877), but its origins can be
seen in Rashi’s comments on Sanhedrin 33b: NAKI implies innocent from the sin,
even though he has been found guilty by law. TZADDIK implies that he has been
acquitted by law, even though he is not innocent.
Rambam, in his Book of the Commandments, counts the prohibition against
executing a NAKI or a TZADDIK as a negative commandment (290). Ramban, based on
his reading of Sanhedrin, counts two separate negative commandments:
1 . Do not execute the innocent, even though he has been
condemned.
2 . Do not retry one who has been acquitted, even though a judge claims to be
able to argue for his guilt. We learn from this that the Torah prohibits
condemning based on probability.
Sefer HaChinuch (ascribed to either R. Aharon HaLevi or R. Pinchas HaLevi of
Barcelona, mid-13th Century), in Commandment 82, explains the rationale behind
this:
For if the Torah allowed us to establish the boundaries of
punishment around strong likelihood, the consequence of this would be at times
to establish the boundaries of punishment to include remote possibility, until
we would put people to death sometimes for what they did not do. For possibility
covers a wide range. . . . G-d wished that we should cast about and consider
every possible point and argument in favor of the person on trial. Perhaps he
became penitent and had remorse for the evil that he did and he will yet be
among those who settle the world; and He, blessed is He, desires its settlement
and habitation. The Torah prefers that a guilty person goes free than that an
innocent person be executed.
However, Rashi continues and says if one is guilty, Hashem will punish him:
Because I will not justify the wicked you must not retry him, because I will
not find him righteous in My justice: Even if he leaves your jurisdiction
acquitted, I have many emissaries to execute him with the type of death that he
deserves to receive.
Bechor Shor emphasizes Hashem’s Omniscience: “And if you say,
‘He will remain a wicked person and rejoice that he escaped,’ therefore, it is
said, ‘because I will not justify the wicked’: I will exact the law from him,
because to Me is revealed the clarification of the matter.”
Haamek Davar (R. Naftali Tzvi Yehudah Berlin, 1817-1893) takes a radically
different approach: “Wherever the court convenes, G-d judges in their midst, as
Yehoshafat says, ‘And [He is] with you in a matter of judgment’ (Divrei HaYamim
II 19:6). And therefore, I direct their understanding so they will pronounce
judgment in accordance with Providence, and therefore, he is innocent or
righteous, for otherwise, I would not have allowed a wicked person to be
acquitted.”
Our verse speaks of falsehood (SHEKER), yet it does not demand truth (EMET),
perhaps because human beings are denied knowledge of absolute truth. Still,
justice must be done. In the pursuit of justice there is a striving for truth,
yet in the human sphere the two may not always be synonymous.
In order to enforce justice, we must rely on Hashem, Who knows the truth.
| "Ain
Torah K'Torat Eretz Yisrael!"- Torah from Aloh Na'aleh* |
| Parshat Mishpatim
If a Jew steals, Torah Law allows
him to repay his debt through a six-year servitude. If he wishes to extend
his servitude, the Torah prescribes the piercing of his ear at the
doorpost.
Why the ear? Rav Yochanan ben Zakkai (Kiddushin 22b) explains that it was
the ear which heard at Har Sinai the words "do not steal", and in addition
it was stated "ki Li Bnai Yisrael avadim" - "unto Me are the Jewish People
slaves," - "v'lo avadim l'avadim"-"and not slaves to other slaves." In
both of these dictums the ear was delinquent of its duties and did not
listen.
However, one may still ask, "Why the ear?" After all, the hand was just as
responsible for stealing and taking the goods. Furthermore, if the ear is
held accountable, let it be pierced immediately upon being convicted of
stealing. Why wait until the end of the six years?
Rav Chaim Yaakov Goldvicht z"l, Rosh Yeshiva of Kerem B'Yavneh, explains
by means of a parable: Often an individual who works hard during the week,
barely finds a moment for Torah studies, but the inspirational Torah he
hears and learns on Shabbat inspire him to commit to finding more time for
Torah during the week. Yet after Shabbat, the rigors of the week again
sink him in to the old, Torah-bare routine. Still, with each Shabbat that
he experiences, more shiurim accumulate in "his ear," and ultimately this
enables him to change his lifestyle. Similarly, it takes a long time for
the slave to recognize that what truly lay behind his theft was his loss
of shmiah - his power to "hear" and change himself. After the six years he
completes as punishment for stealing, the lesson has been learned and he
can now become a better person, growing closer to Hashem. However, if he
voluntarily extends his servitude, he in essence gives up his hearing
power and can only do what he is told to do by his master. This loss of
the ability to be inspired in order to change his ways is the tragedy that
is memorialized with the pierced ear.
The lesson is clear: we must be careful never to enter situations or
lifestyles where our ability to achieve spiritual heights is removed from
our hands. Never turn a deaf ear. Listen to and take advantage of change,
to come closer to both Torat Yisrael and Eretz Yisrael.
Rabbi Chanoch Yeres
Rabbi, Beit Knesset Beit Yisrael
Yemin Moshe, Yerushalayim
*D’var Torah from Aloh Na'aleh:
an initiative of former North American Rabbis and laymen who successfully
made Aliyah, aimed at highlighting the centrality of Israel and promoting
Aliyah. They send emissaries – Rabbis, academicians, and others – on
speaking-tours throughout the U.S. and Canada.
Contact information:
Tel: 972-2-566-1181 ext. 320
Fax: 972-2-566-1186
Email: aloh-naaleh@aaci.org.il |
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