Jewish Litigation Parshat Mishpatim

Rabbi Jonathan Sacks, "In The Details" (Mishpatim 5773)

On the opening phrase of Mishpatim – “And these are the laws you are to set before them” – Rashi comments: “And these are the laws” – Wherever uses the word “these” it signals a discontinuity with what has been stated previously. Wherever it uses the term “and these” it signals a continuity. Just as the former commands were given at Sinai, so these were given at Sinai. Why then are the civil laws placed in juxtaposition to the laws concerning the altar ? To tell you to place the Sanhedrin near to the Temple. “Which you shall set before them” – G-d said to Moses: You should not think, I will teach them a section or law two or three times until they know the words verbatim but I will not take the trouble to make them understand the reason and its significance. Therefore the Torah states “which you shall set before them” like a fully laid table with everything ready for eating. (Rashi on Shemot 23:1)

Three remarkable propositions are being set out here, which have shaped the contours of Judaism ever since.

The first is that just as the general principles of Judaism (aseret hadibrot means not “ten commandments” but “ten utterances” or overarching principles) are Divine, so are the details. In the 1960s the Danish architect Arne Jacobson designed a new college campus in Oxford. Not content with designing the building, he went on to design the cutlery and crockery to be used in the dining hall, and supervised the planting of every shrub in the college garden. When asked why, he replied in the words of another architect, Mies van der Rohe: “G-d is in the details”.

That is a Jewish sentiment. There are those who believe that what is holy in Judaism is its broad vision, never so compellingly expressed as in the Decalogue at Sinai. The truth however is that G-d is in the details: “Just as the former were given at Sinai, so these were given at Sinai.” The greatness of Judaism is not simply in its noble vision of a free, just and compassionate society, but in the way it brings this vision down to earth in detailed legislation. Freedom is more than an abstract idea. It means (in an age in which slavery was taken for granted – it was not abolished in Britain or the United States until the nineteenth century) letting a slave go free after seven years, or immediately if his master has injured him. It means granting slaves complete rest and freedom one day in seven. These laws do not abolish slavery, but they do create the conditions under which people will eventually learn to abolish it. Not less importantly, they turn slavery from an existential fate to a temporary condition. Slavery is not what you are or how you were born, but some thing that has happened to you for a while and from which you will one day be liberated. That is what these laws – especially the law of Shabbat – achieve, not in theory only, but in living practice. In this, as in virtually every other aspect of Judaism, G-d is in the details.

The second principle, no less fundamental, is that civil law is not secular law. We do not believe in the idea “render to Caesar what is Caeser’s and to G-d what belongs to G-d”. We believe in the separation of powers but not in the secularisation of law or the spiritualisation of faith. The Sanhedrin or Supreme Court must be placed near the Temple to teach that law itself must be driven by a religious vision. The greatest of these visions, stated in this week’s sedra, is: “Do not oppress a stranger, because you yourself know how it feels like to be a stranger: you were strangers in Egypt.” (Shemot 23:9)

The Jewish vision of justice, given its detailed articulation here for the first time, is based not on expediency or pragmatism, nor even on abstract philosophical principles, but on the concrete historical memories of the Jewish people as “one nation under G-d.” Centuries earlier, G-d has chosen Abraham so that he would “teach his children and his household after him to keep the way of the Lord, by doing what is right and just.” (Bereishith 18:19) Justice in Judaism flows from the experience of injustice at the hands of the Egyptians, and the G-d-given challenge to create a radically different form of society in Israel.

This is already foreshadowed in the first chapter of the Torah with its statement of the equal and absolute dignity of the human person as the image of G-d. That is why society must be based on the rule of law, impartially administered, treating all alike – “Do not follow the crowd in doing wrong. When you give testimony in a lawsuit, do not pervert justice by siding with the crowd, and do not show favouritism to a poor man in his lawsuit.” (Shemot 23:2-3)

To be sure, at the highest levels of mysticism, G-d is to be found in the innermost depths of the human soul, but G-d is equally to be found in the public square and in the structures of society: the marketplace, the corridors of power, and courts of law. There must be no gap, no dissociation of sensibilities, between the court of justice (the meeting-place of man and man) and the Temple (the meeting-place of man and G-d).

The third principle and the most remarkable of all is the idea that law does not belong to lawyers. It is the heritage of every Jew. “Do not think, I will teach them a section or law two or three times until they know the words verbatim but I will not take the trouble to make them understand the reason and significance of the law. The Torah states ‘which you shall set before them’ like a fully laid table with everything ready for eating.” This is the origin of the name of the most famous of all Jewish codes of law, R. Joseph Karo’s Shulkhan Arukh.

From earliest times, Judaism expected everyone to know and understand the law. Legal knowledge is not the closely guarded property of an elite. It is – in the famous phrase – “the heritage of the congregation of Jacob.” (Devarim 33:4) Already in the first century CE Josephus could write that “should any one of our nation be asked about our laws, he will repeat them as readily as his own name. The result of our thorough education in our laws from the very dawn of intelligence is that they are, as it were, engraved on our souls. Hence to break them is rare, and no one can evade punishment by the excuse of ignorance” (Contra Apionem, ii, 177-8). That is why there are so many Jewish lawyers. Judaism is a religion of law – not because it does not believe in love (“You shall love the Lord your G-d”, “You shall love your neighbour as yourself”) but because, without justice, neither love nor liberty nor human life itself can flourish. Love alone does not free a slave from his or her chains.

The sedra of Mishpatim, with its detailed rules and regulations, can sometimes seem a let-down after the breathtaking grandeur of the revelation at Sinai. It should not be. Yitro contains the vision, but G-d is in the details. Without the vision, law is blind. But without the details, the vision floats in heaven. With them the divine presence is brought down to earth, where we need it most.

Rabbi Warren Goldstein, "Pursuing Peace In A Chaotic World"

- Chief Rabbi of The Union of Orthodox Synagogues of South Africa

Life is messy. We make the best of plans for all kinds of eventualities but things can still go wrong and often do. That’s the very nature of it, and we need to accept that there will be a certain degree of disappointment. This is how we build up experience and resilience. It’s not a matter of being pessimistic or optimistic, but rather about being realistic and understanding that this is the nature of life.

Part of the nature of life’s messiness is conflict – human conflict. Interaction between people sometimes leads to conflict situations. Conflict is a natural part of human society.

Just because something is natural does not mean that it is the ideal

Conventional wisdom says that if something is natural, then it must be good. Judaism, on the contrary, teaches that not everything that is natural is necessarily the ideal. Conflict is a perfect example of this. It is the nature of the world, the nature of people, that conflict will arise; but this is not the ideal.

The Maharal of Prague writes about this in a number of different places in his philosophical works, and explains that conflict is a very natural state of affairs between people because every human being is a sovereign individual. That sovereignty comes from the fact that each one of us is created in the image of G-d and therefore we have an internal feeling of what is called malchus in Talmudic vocabulary, a sense of kingship and royalty. When everyone is a king, there are bound to be clashes between independent sovereignties. Yet the fact that conflict is natural does not mean that it is good and that it should remain that way.

Peace is not natural, and therefore we must pursue it

One of the most important values in Judaism is shalom, peace, and we are obligated to pursue it, as the Mishnah says in Ethics of the Fathers, one should be ohev shalom v’rodef shalom, one should “love peace and pursue peace.” The Maharal explains that the Mishnah obligates us to pursue peace because it is not the natural state of affairs. Because the natural state of affairs is conflict, to achieve peace in the world one actually has to pursue it; peace does not come naturally.

People tend to think about peace as a global concept – world peace, politics, international politics, global conflict, etc. – but really the pursuit of peace is something that applies to every single one of us in our day-to-day lives; in our interactions with our families; within communities; and on a business level. Conflicts break out all the time and in order to maintain peace we have to pursue it actively because it is not a natural state of affairs. G-d has created us as sovereign individuals with a predisposition to conflict and yet we must try to overcome conflict and bring as much peace as possible into our lives.

Pursuing peace practically

It’s all very well to talk about the pursuit of peace in abstract terms, but realistically conflict will break out and sometimes these conflicts cannot be resolved amicably without an external governing body. In such a situation, people come before a court, what we call a Beit Din, a House of Judgment, where people can bring their matters of dispute to be resolved in accordance with Torah law. The Talmud teaches that the court proceedings have to be conducted in such a way that combines justice with peace, and there are many guidelines in the Talmud and the Shulchan Aruch, the Code of Jewish Law, as to how this should be done.

The Torah provides detailed requirements governing human interactions, many of which are contained in this week’s portion, Mishpatim, which literally translates as “laws.” This portion has a tremendous amount of laws governing human interaction, and it is not coincidental that this portion is placed right here, immediately after the great revelation at Mount Sinai.

Last week we read about the revelation of G-d at Mount Sinai and His giving of the Torah to the Jewish People. This was a tremendously inspiring experience for the Jewish People, to actually hear the voice of G-d giving over the Ten Commandments, all the grand governing principles of Judaism: I am the Lord your G-d, Who took you out of the land of Egypt and the house of bondage.

From that portion we go into our portion, which is comprised of many detailed laws concerning the messiness of life and human conflict: laws about assault, in the event of one person assaulting another and what damages he has to pay; laws governing all kinds of damages, to people and to property. All the different parts of human interaction and conflict that arise from situations where one human being harms another or damages his property are part of the intricate laws in the portion of Mishpatim.

The message behind this is that the Torah is not concerned merely with the grand occasions, with the inspiration of G-d’s revelation at Mount Sinai and His revealing His word in the world. The Torah is really about day-to-day holiness which is achieved through ethical interactions with our fellow human beings in accordance with the laws of the Torah, and through pursuing peace and having a framework of laws to govern human interaction when conflict arises, as it always will.

The practicality of Torah combats the messiness of life

The laws detailing how conflict is managed are part of Judaism’s broader philosophy of not being afraid of the messiness of life. The Torah is intensely practical. It is idealistic, visionary and inspiring, but most importantly it is practical, detailed and technical because the overarching message is that real holiness is only achieved through the fine details of how we live our day-to-day lives. It is not about the fancy speeches and grand occasions, but about the detailed ethical living in the messiness of day-to-day life.

The Torah is not afraid of tackling conflict. On the contrary, life is messy and therefore life must revolve around the principles of the Torah. Rather than run away from life’s messiness, the Torah provides the framework for dealing with it. Torah is not an abstract concept but a document for life, our guidebook so that we can deal with all of the problems that arise.

The first thing a Jewish child learns is to take responsibility for his actions

When a child begins studying Mishnah, they begin with tractate Baba Kama, which details the laws of nezikin, the laws of damages. In the very first passage, the Mishnah discusses the four avot nezikin, the four major categories of damages: shor, bor, mav’eh and hev’er, all of which are dealt with in this week’s portion.

The first category is shor, literally an “ox.” The damage caused by an ox can be divided into three different categories: the first is keren (literally, “horn”), where the ox gores with its horns; the second is shein (literally, “tooth”), where the ox eats something that does not belong to its master; and the third is regel (literally, “foot”), where the ox knocks something over while walking.

There is a Talmudic principle that dibra Torah b’lashon hoveh, “the Torah speaks in the language of the present” (i.e., current) which means the examples that we find in the Torah are examples that were current at the time the Torah was given. The important thing to remember is that these examples are only examples; the principles can be extended. The category of shor is really an example of a broader category of damage which is caused by a person’s property, i.e., where the damage is not caused by an individual personally, but by that individual’s property.

A classic example of this is a dog. Someone who owns a dog and the dog goes and bites another person, that person can claim for damages in terms of this category which we call shor.

The second category mentioned is bor, literally a “pit”, where a person digs a pit in the public thoroughfare and somebody falls in it – in such a case the person who dug the pit is liable for damages. Again, this is but one example and is part of a much broader category. If a person creates any obstacle or causes any obstacle in the public domain – for example, a person leaves a puddle of oil and a car slips on it, or a banana peel and somebody slips on it, or any kind of an obstacle – that is all within the category of bor which will then result in a claim for damages.

The third category is mav’eh. One way to interpret this category is that it refers to a human being, if a person damages another with his own body. This differs from shor, where the damage is caused by your property, and bor, where a person has created an obstacle which causes damage. Mav’eh is where a person damages another physically, or another’s property, with his own body. One is liable for this as well.

The final category that is mentioned is hev’er, literally, fire. For example, someone who lights a fire which then spreads and causes damage. Again, this is just an example of a broader category of creating a hazard that has a force which propels the hazard towards people. This is in contrast to the pit where one digs a hole and people who come to the pit are harmed. With hev’er, one has created a hazard that moves towards people. It can be fire, or leaving a sharp object on top of a building where the wind can blow it off and it causes damage, or anything set in motion that is liable to cause damage. We are responsible for these damage claims as well.

These are the four categories of damages, the avot nezikin.

There is another passage which states that if one assaults another, he is obligated to pay for five things: the pain which is caused, the loss of the capacity to produce economically for the future, lost income in the here and now, medical expenses, and shame/humiliation.

One may wonder, why is this the first thing that children learn when they start to learn Mishnah? Why are children in primary school learning such intricate legal material which, in the secular world, only law students would encounter in their textbooks? And why is this put in the very portion that comes immediately after the great revelation at Mount Sinai?

Part of the answer is that these laws are not just for the courts; they are laws for us, governing how we lead our lives. When we study laws like these, when a child learns all the laws of damages in school, this fosters an awareness of the potential to harm other human beings, the necessity to go out of one’s way not to do so, and that one is responsible for any harm he may have caused. This is a vital part of a child’s education: sensitivity to other human beings, responsibility, accountability, and the knowledge that there are consequences to our actions.

Consequences of our actions

We live in a world where people want to have the freedom to do whatever they please but then refuse to accept responsibility for the consequences of their actions. But we must take responsibility as we are held accountable for our actions and their consequences.

Judaism teaches that accountability is the pillar of morality. When we do something and it causes harm, there are consequences and we have to pay for those consequences. Sometimes we pay for these consequences literally – i.e., financially – and other times they are paid for in other ways. An ethical person understands that there is great potential to harm other people at all times, and we have to be so careful not to do so.

What is saintliness?

This is why the Talmud says that if one seeks saintliness, one should work on perfecting mili d’nezikin, the laws governing damages. The Talmud cites the example of the early saintly Sages whose benchmark of saintliness was not their tremendous devotion in prayer nor their spirituality, but rather their habit of taking care that no harm should come to another person. The Talmud relates how when these early saintly Sages would come across sharp objects like a broken piece of pottery, they would dig a hole roughly a metre deep, put the piece of pottery inside and cover up the hole, even if they were not the ones who broke it. They did this so that nobody would get hurt by it, and no damage would be caused by it should the ground be ploughed. This example is all the more poignant when we consider that they were not even the ones who broke the piece of pottery.

This is what defined their saintliness. They looked at the world and realised that harm could be caused to vulnerable human beings and they went out of their way so that no one should suffer as a result of their actions or anybody’s action. This is how a truly saintly person behaves.

When children are taught this from a young age, they are inculcated with a certain mindset and philosophy which dictates that we have to go out of our way to prevent harm and suffering from coming to another person. This is so important in Judaism, and this is why the first thing that children learn when they begin to learn the Mishnah is the laws of damages.

Being careful not to cause emotional harm

The harm that we could potentially cause is not just in the physical realm, by causing damage to property or bodily harm to a person; harm can be caused emotionally as well – for example, with words. This particular philosophy of being sensitive to the needs of others and not causing any suffering means not causing physical harm, financial harm, emotional harm through nasty and cruel words, whether these are said behind a person’s back – what we term lashon hara – or directly to a person, what falls under the prohibition of ona’at devarim, causing someone pain by verbal abuse.

We have to be so careful in these matters. A truly saintly person is someone who understands all of these laws and is scrupulous not to cause anyone any sort of harm.

True greatness is evident in those who love the laws

It goes one step further: the Midrash Tanchuma at the beginning of this week’s portion begins with a verse from Psalms (chapter 99 verse 4) v’oz melech mishpat ahev, “the strength of a king is that he loves laws.” The Midrash expands upon this verse by way of introducing the theme of this week’s portion, saying this is the greatest praise of G-d, namely, that He loves laws. G-d created laws, and He expects the world to function according to these laws, as He Himself functions in accordance with the same laws that He created.

The Midrash states that this is not the norm of the world. Generally, someone who is all-powerful does not love laws. People who have power usually abuse that power. The Talmud gives many such examples, people who have unrestrained power wish to steal, wish to show favour to their friends and those who are close to them and are prejudiced against those who are far from them as well as their enemies. But G-d, who has truly unlimited power as the King of all Kings in the world, still follows His laws. Any human tyrant, no matter how tyrannical is their regime, their power is limited by certain forces of the physical world. But G-d is completely unlimited. He could do whatever He wants and yet He chose to govern the world by Mishpatim, by laws, and He chose to govern Himself by those laws. That becomes the model on which we base our behaviour.

The significance of this week’s portion of Mishpatim is that this is how G-d wants us to live, in accordance with the laws. Society has to function according to the rule of the law. The rule of law is there to control political power: politicians, the government, etc. The Talmud states that there is always going to be a struggle, tension between power and the law, no matter what society one is living in and no matter what era in history.

We tend to think that the rule of law is applicable only in politics and government, but Judaism maintains that the rule of law relates to our own personal, private lives as well. The laws of damages are not only in textbooks for the courts and legal scholars; they are for our children – and for us – to learn a way of life where we restrain ourselves and live in accordance with ethical principles even though we have the freedom to break those laws because G-d gave us free choice.

What this Midrash is teaching us is that we must self-regulate by accepting upon ourselves G-d’s laws and ethical principles. In the same way that G-d, who is unlimited in His power, accepts these laws and operates in accordance with these laws, so too must we, as free human beings, accept the rule of law in our own lives. These laws are not only to keep society functioning optimally by governing all human interaction; they teach us about self-development and what it means to be a decent human being.

Saintliness requires a holistic adhering to the laws

The above quoted passage from the Talmud which talks about saintliness discusses three approaches to saintliness: the first is attaining perfection in mili d’nezikin, in the area of damages as we have discussed; the second is attaining perfection in mili d’brachot, in matters of blessings; and the third relates to mili d’avot, Ethics of the Fathers. What do these three categories encompass?

The Maharal of Prague explains that there are three relationships we have in the world. One is between us and our fellow human beings and this relationship is referred to by the category of matters concerning damages. The second is between us and G-d, and this is referred to by the category of blessings where we give thanks to G-d. The third relationship, says the Maharal, is the relationship between us and ourselves. Saintliness in this category is carried out via Ethics of the Fathers, the tractate devoted to our developing into better people, by conquering anger, conquering arrogance, conquering jealousy, refining our character – these are all part of our relationship with ourselves.

Some people are very good with laws between man and his fellow human being, and not good in their relationship with G-d; others are very good in their relationship with G-d but are not very ethical in their interactions with their fellow human beings; still others are good in these two categories, but have not fully developed their character traits to become refined human beings. Judaism maintains that the way to saintliness is to perfect all three relationships in our lives. But perfecting these three areas depends on the fundamental principle which says we have to self-regulate and accept the rule of law and accept all of the laws of the Torah.

In this week’s portion all different kinds of laws are mentioned. Although the bulk of them deal with the interaction between human beings, there are also laws regarding Shabbos and the Yom Tov, comprising the full spectrum of what is necessary for us to be spiritually whole. G-d is our role model, in that He has the ultimate unlimited power and yet He makes these ethical principles by which the world is governed. He accepts to be governed by these same principles and laws and we follow His example. We have freedom of choice but we accept these laws, knowing that to be a great person means to accept these laws and love these laws. These laws govern us in every relationship and interaction that we have, creating the framework for us to channel our free will in the direction of goodness.