Having to Live With Ourselves

Parshat Mishpatim 

by Rabbi Avi Billet

In his very first comment on the Parsha, Rashi asks why the set of rules that comprise Parshas Mishpatim are told to us right after the rules of the Mizbeach, as described at the end of Parshas Yisro? “To tell you that you are to place the Sanhedrin right next to the Mikdash/Mizbeach.” (Both versions – Mikdash and Mizbeach – appear in Rashi, indicating a non-clear designation of exactly where the Sanhedrin will be seated. This could be Rashi’s doing, or it can be the comment of an editor. Suffice it to say, Rashi may not have felt a need to elaborate because he felt it was obvious.) 

Rashi’s question is stirred on by the fact that he is of the view that the rules of Mishpatim were told to Moshe while he was on Mt. Sinai, a trip he doesn’t take until the end of the parsha (in chapte24). Rabbi Eliyahu Mizrachi, one of the super-commentator’s on Rashi, elaborates Rashi’s question, asking why the laws are mentioned in the context of instruction for the Mizbeach, seemingly out of order of how they were presented to Moshe! The proximity of both sets of rules “is to tell you to have the Sanhedrin set up next to the Mikdash in the Lishkas HaGazis (a separate dedicated room) which is close to the Mizbeach.” 

A possible reason for the Sanhedrin to be so close to the Mizbeach is to allow for the Sanhedrin to be able to observe the humanity of the Jewish people at their basic form of service of God. People bring korbanos (offerings) as a responsibility, as a devotion, as a form of gratitude, or on account of a sin (this list is not exhaustive). All are trying to feel closer to the Almighty, and through their sincere offerings, they demonstrate who they are at their core. 

While it can certainly be argued that “Justice must be blind” and that the Sanhedrin can’t show favoritism or sway the law in any manner that is improper, this does not mean that the Sanhedrin can’t take into account an individual’s humanity in certain errors brought their way! Certainly much of Mishpatim includes the law’s need to discern certain truths about people which play a factor in some of their mistaken ways. Perhaps we can take the imagery further and suggest that the “Mizbach Adamah” – the Mizbeach made of earth – is meant to keep the Sanhedrin “grounded” and “down to earth,” so they never lose sight of their obligation, even through their deliberations and judgments, to follow the drasha on וראהו הכהן (when a Kohen examines a person who has a tzaraas affliction) – which is to see the person, and not just the blemish that needs to be judged. 

To be intellectually honest, Rabbi Samson R Hirsch rejects such a concept: “The whole idea of the right of pardon is absent in the code law of the Jewish state. Justice and judgment are God’s, not man’s. When the precisely defined Law of God – which leaves no room for human arbitrariness – ordains death for a criminal, the execution of the sentence is not a harsh act that can be commuted in consideration of the circumstances, but is itself a most considerate atonement – for the community, for the land, for the criminal…” (21:14) 

At the same time, to be fair to the other perspective, he says this in the context of a case against a deliberate murderer. Would the same apply in a case that is a little more gray than black and white? Perhaps it is easy to understand how a court might conceptually be more lenient when a person sins between himself or herself and God, or when the error of one’s ways against another human being is easily rectified. 

Does anything change when the Sanhedrin is confronted with a case where someone has committed murder? Is it different if the charge is voluntary manslaughter, or involuntary manslaughter (which are both different from murder on account of how “intent” or “lack of intent” is defined in a specific case, as well as the degree of negligence demonstrated in the act that took a life). 

The Torah gives us a case of murder in 21:14 when a person, בערמה, with guile, commits a murder, “He is to be taken from My Mizbeach for execution.” This phraseology is open to a number of interpretations: even if he is a kohen, he is to be taken to his death without allowing him to start / complete his service (Pesikta, Rashi, Targum Yonatan, Ibn Ezra, etc); the example of Yoav who ran to the Mizbeach to avoid arrest and execution, the Mizbeach was not to serve as a refuge, certainly not for someone who was to be executed by the king (Ibn Ezra, Rabbenu Bachaye, Haktav V’hakabbalah, etc); Rabbenu Bachaye adds the important reminder that “since he’s a murderer who is guilty and deserving of death, the pasuk commands us to take him out, and to give him over to those who have a complaint against him (ie. relatives of his victim who might take his life) because he is undeserving of compassion and mercy. Mercy in this situation [to a murderer] is in fact cruelty to all others.” 

All of these interpretations follow a similar pattern. A person who has murdered deliberately, without just cause (such as an act of defense, for oneself or defending another), while ignoring the warning of witnesses who subsequently testify against him, he is to be taken away from the Mizbeach, which, in light of Rashi’s opening statement in our parsha, would mean that at the very least he would be taken from in front of the Sanhedrin (which is at the Mizbeach) and executed elsewhere. Especially in light of how Rabbenu Bachaye views capital punishment for a deliberate murder as being an act of compassion towards the rest of the community (since keeping him alive would be an act of cruelty to everyone), we can at least understand, even if in our 21st century molding of the mind some of us may have a moral case against capital punishment. 

Arguably the most difficult concept to understand on this passage (21:14), however, is Rashi’s defense (based on the Mechilta) of individuals who commit involuntary manslaughter for the simple reason that their intent was not בערמה, with guile. They include the physician, Beis Din’s lashes-giver, a father who strikes his child, a Rebbe who strikes his student, and the accidental murderer. The explanation? Even though in each case the person in question intended to do what he did – ie, the doctor used an experimental treatment or messed up in surgery causing the patient’s death, the lashes-giver gave (on Beis Din’s authority, and on the say-so of a physician appointed by Beis Din to assess the health of the lashes-recipient) one lash too many which caused the death of the lashes-recipient, the father who potched his child too hard, and the Rebbe who disciplined too hard causing the child’s death – death was never on the mind of the so-called perpetrator! 

Can it really be true that these deaths, while notably tragic, have no repercussions to the one’s guilty of causing the death? How can we honestly argue it’s involuntary? The doctor knows there is risk in what he’s doing. In weighing the pros and cons, he made a choice that cost his patient’s life. The lashes-giver should have recused himself at the point he felt the person could not handle another Makkah as he watched the person deteriorate in front of his eyes. And it is very hard to have sympathy for the father or Rebbe who can deliver a blow that could lead to the death of the recipient. It’s hard to call it involuntary with a mighty blow like that! 

Perhaps we can say there was no intent to cause the loss of life. One saving grace. But seriously, how could there be ZERO repercussions to those who cause this kind of loss of life? Rabbi Chaim Paltiel calls them מזידין! People who deliberately did the action involved, but were saved because “they were not מערימין” (they didn’t behave with guile). It is true! Find me one of these individuals – the doctor, the Beis Din emissary, the father, the rebbe – who is pleased with the outcome. There isn’t one. Each one will regret how far things went, and will certainly acknowledge (if honest) that the actions taken were wrong and the outcome most tragic. 

How could there not even be a slap on the wrist and a warning? Alshikh, for example notes the distinction between someone who kills בשוגג, accidentally, and one who murders on purpose, that the reason to take the murderer out to his death is because “it is good for him to die immediately and to achieve atonement through his death and his ווידוי.” He doesn’t extend that argument to the one who is not classified as a מזיד. 

No one should be able to speak from experience. But I wonder, for someone who has this happen, what does the rest of life look like? Does living with the guilt of having killed someone undeserving of death serve as its own punishment? It’s almost as if a judge might say, “Look what you did. Now you have to live with yourself for the rest of your life.” 

While we certainly hope that kind of regret is one no one should ever have to face, there are many choices we make that we can consider, or reconsider, and do differently when faced with similar situations. What will we do to not live life with regrets? To never have to worry that “I have to live with myself” over what I did that impacted someone else’s life. 

May we be blessed to have clarity of vision, and clarity of all life paths going forward so we can always “live with ourselves” because our choices have been the kind we’d love our family members to write about when they tell the story of their ancestors, who not only never committed an act of involuntary manslaughter, but did all they could to lift us up, to encourage, to inspire, to serve as role models, to be there for a phone call, a little assistance and always an encouraging word.