When Crime is Committed, Everyone Loses

Parshat Mishpatim

by Rabbi Avi Billet

Less than 2 chapters after telling us “Thou shalt not commit murder” the Torah gives us an example of where it is perfectly permissible to kill someone: “If a burglar is caught in the act of breaking in, and is struck and killed, he has no ‘damim.’” (22:1)

The phrase “he has no damim” is typically translated to mean, “it is not considered an act of murder” because the burglar took his life into his own hands through the invasion, making himself already a dead man, and his killer innocent based on double indemnity.

This is the overwhelming view of most commentaries.

Rabbi Chaim Paltiel explained the verse differently, utilizing the Talmudic definition of the word “damim” which is “money,” and noting that there is no space in the Torah between this verse and the previous verse. Despite the new chapter, the lack of a break between 21:37 and 22:1 stands to indicate a connection between the verses, at the very least thematically, if not even still remaining the same topic completely!

Parenthetically, we’ll note that the chapters as divided were not made by Jews, but by early Christian scholars who divided the text into chapters based on their interpretations, but clearly with no knowledge of the tabs and returns (keyboardly speaking) in the actual text of the Torah. They were accepted as standard fare out of convenience, but they are by no means authoritative, as in being able to teach us anything. For that we rely on the spaces in the text, as transmitted through our mesorah.

Rabbi Paltiel assumes that the burglar is coming in the night to steal an ox or lamb (the topic of 21:37), and if the animal is killed in the process of the theft, the burglar has no responsibility to pay the otherwise necessary fine of 5x the amount for cattle and 4x the amount for sheep. However, “if the sun shines on him,” and he is successful in his thievery, then “he has damim and he would have to pay, and if he does not have the money, he is to be sold to pay the debt.” (22:2) In this case “damim” means a financial responsibility owing to the ownership he claims on the item. When it is still in the actual owner’s property, the thief hasn’t taken control of it. Anything that happens while on the owner’s land is not considered stolen property.

Go back and look at the verses, and you’ll likely find this argument to be a lot more compelling than you’ve given it credit for until now.

So what are we to do with the “classic” interpretation? Can we argue that the Torah is not really condoning the killing of a burglar?

The fact of the matter is that every other time the word “damim” appears in the Torah, it refers to blood. This would suggest that the word likely means “blood” here as well, and not “money.”

I think that even if we apply the depiction of the “struck and killed” to the animal, as Rabbi Paltiel does, we could still argue that the phrase “he has no damim” is referring to the burglar - he is a dead man walking around in the property of his victims.

Which leads us to the bottom line, which I believe is an almost-universal truth.

There is something very very wrong with being a burglar. Anyone who burgles, no matter the outcome of the theft, has no rights to his (or her) own blood. Certainly if it happens that the burglar dies in the process, but even if an animal dies on account of criminal negligence, or the animal being put in harm’s way on account of the crime, the burglar is responsible for all resultant consequences (not merely whether he has to pay the full fine, but ALL consequences).

So, is the Torah telling us a bit of legal-eze in the realm of thievery, or is the Torah calling a homeowner James Bond and granting a license to kill?

I think the Torah is doing a little bit of both. But even more than anything, the Torah is using this little anecdote to prove that crime, in one form or another, doesn’t really pay in the end. On the contrary – crime only serves one purpose: it makes everyone involved a loser.

Bet Din v Secular Court

Parshat Mishpatim

by Rabbi Avi Billet

Many commentaries discuss the opening word of our Parsha, wondering what to make of the word "V'Eileh" – and these are – "Hamishpatim…" the laws which are to be placed before the Jewish people. 

The Medrash Tanchuma, for example, notes the difference between if the word begins or does not begin with a "Vov," which serves as the conjunction "and." Quoting Rabbi Abahu in the name of Rabbi Yosi ben Zimra, the Midrash records how when the letter vov does not appear what came before is not relevant to the here-and-now because a new narrative is being introduced. On the other hand, when the vov is present, the conjunction serves to unite what came before with what follows – in some cases even adding information to glorify a previous text.

 We had previously learned that in Marah (15:25), God had placed "a law and a statute" before the people, and now Moshe was being told, "And these are the laws you should [also] place before them." The latter builds on the former.

 The Midrash goes on to explain that the term "lifneihem" (before them) is literally meant to instruct that these laws apply "before a court made up of [Jews]" and not before idolaters.

 The Midrash asks, "How do we know that two Jewish litigants who have a need to settle a matter in court, who know that they can get the same result in front of a non-Jewish court [as in front of a Bet Din] have a mandate to go to the Jewish court? Because it says, "Before them (the Jewish court)" which means and not before the non-Jewish court.

 It really is a simple formula, perhaps no different than understanding the rules of Shabbos, and why rabbis to this day will have a problem accepting some Jews as valid witnesses on important documents such as a ketubah or a get.

The party line is that a person who violates the Shabbos (and of course there are loose definitions of this, just as much as there are hard definitions of this) is viewed as having denied that God created the world in 6 days and rested on the 7th, the acts we emulate when we keep Shabbos. How can a person who denies God's role in the world serve as a witness on a document that testifies to God's law?

Similarly, the Midrash argues, a person who chooses not to go to a Bet Din is denying God's role in the world, and ultimately His Torah, which instructed you to settle these monetary matters "in-house."

A parable is utilized to drive the message home. Imagine two scenarios in which a doctor treats a patient. In the first case, the doctor examines the patient and instructs the family to feed him whatever he wants. For the second patient, the doctor gives him a very specific diet. When asked why he gave the two patients such different treatments, the doctor replied that the first one has no chance for survival. Why restrict his enjoyment when nothing will help him? The second one, on the other hand, can get better with a very careful diet. Why exacerbate his problem if we can fix it?

This, the Midrash explains is the perspective we ought to have regarding "their laws." Invoking a passage in Yirmiyahu (10:3) and Yechezkel (20:25) the Tanchuma declares a difference between the righteousness of the Torah's laws (the food which will help the patient) versus those of the general society (which will do no harm because the patient is lost anyway). The Torah's laws, for example, declare that they give us a foundation "to live with them." (Vayikra 18:5)

Following all of these laws, including to bring your court cases before a Jewish court will bring about the fulfillment of Yeshayahu 1:26-7 and 56:1, promises for a time when the judges are returned to the place where they belong, at the high court in Jerusalem.

 This Midrashic passage is one of the sources addressing the halakha of the incumbency to utilize the Bet Din, most notably in monetary cases.

 I will not be the one to say that the legal system in the United States is unfair. It is imperfect, as is every legal system, and certainly in the scheme of history, it attempts to be one of the more just legal systems humanity has every put together.

 It also opens doors for rulings which defy logic – lawsuits in which millions of dollars are awarded to litigants, custody battles in which the decision regarding what is "best for the child" is not always so clear, as well as some "no exceptions" rulings which make it to the newspapers every now and then, in which it is clear that bureaucracy is dictating policy, with the human element being removed from the equation.

 This is not to say that the rabbis who sit on a Bet Din are omnipotent, nor that they are always right, nor that "any" Bet Din could take on "any" case. There are Bet Dins which pride themselves on a certain expertise, and guided by Torah and Halakha, they do as decent a job (if not better) than a secular court in their arbitration duties. But even a Bet Din is made up of imperfect humans.

It is the responsibility of the Jew who observes Halakha to always make Bet Din the first stop, in financial suits and civil suits. The right Bet Din might even declare, "We can help you until a certain point, and if you are unsatisfied, you have the legal system of the State."

Hopefully, however, the litigants can come to court looking to do what's right. And with the guidance of the Bet Din, harmony can be achieved as the Mishnah in Avot (1:8) is fulfilled when "they accept the ruling."

To Protect Others From Falling

Parshat Mishpatim 

by Rabbi Avi Billet

תלמוד בבלי מסכת יומא דף פז עמוד א - 

וכל המחטיא את הרבים אין מספיקין בידו לעשות תשובה 

"If a man (though it likely refers to man or woman) opens a pit, or uncovers a pit, and does not cover it (i.e. leaves it uncovered when not working on it), and an ox or donkey fall into it, the owner of the pit (e.g. the one who opened it) must pay money to the owner of the animal, and the [animal's] carcass belongs to him." (21:33-34)

Rashbam spells out the debate regarding to whom the carcass belongs – to whom does "to him" refer? The overall consensus seems to be that the owner is paid and keeps the carcass (Rashi and others). Chizkuni proposes that since the damager is paying in full, he gets to keep the carcass.

I am taking a homiletical leap off the page, because there is a deep lesson that can be taken from the principle involved in this case. The pit is essentially a stumbling block before an unsuspecting being – in this case an animal unprepared to take a potentially dangerous fall – which renders the one responsible for creating the stumbling block as responsible for the ensuing damages which result from the carelessness. The debate over who keeps the carcass can be translated to reflect an idea that both people – the one who causes the stumble (a sin to be committed) as well as the unsuspecting "owner" of the fallen entity (the ensuing "sin") - have ownership over the "carcass," or the sin that wallows in its own negative state.

The Mishnah in Bava Kama 26a says "Adam Muad L'olam," that a person is always responsible for one's choices and actions. Generally this refers to the financial obligations one has for damaging another's property – willfully or accidentally. Even if I leave someone's item on my night-table and accidentally knock it over while I am sleeping, I am responsible. I should have left it in a safer place.

The exception to the rule are cases of "oness" (אונס) – where I am blameless because I was behaving properly and someone else caused me to damage something. If I break something because someone throws me on it, or places it in front of my car as I am driving, or smashes against my property in a manner that is their own fault, I am blameless.

There are many stumbling blocks that we face on a regular basis – it is part of living in a real world. We are tempted with our eyes, we are tempted to gossip, we are tempted to break laws – including those we don't like (e.g. taxes) and those that don't make any sense (e.g. some traffic laws). We are tempted to have the greatest comeback lines, to hurt people with words, and even to hurt people physically.

            

How often do we hear public figures apologizing for things they have said, apologizing for having "misspoken," or for saying things they didn't really mean? (Think Chuck Hagel)

            

When we are loud and obnoxious, we cause others to think ill of us, tempt them to speak lashon hara about us, and may cause them to violate "Do not hate your brother in your heart" (Vayikra 19:17).

            

When we don't take care of ourselves, in appearance (looking shlumpy) and being morbidly obese (excluding reasonable "overweight," and real medical conditions), we cause others to stare, to talk about us, and to judge us. (See Ramban on Vayikra 19:2)

           

When we are scrupulous (or not) about certain stringencies (cholov yisrael in America comes to mind), if we claim those who are not stringent are eating "non-kosher," or say about those who are stringent that they are "totally crazy," we are spreading slander and causing others to look askance at people who are doing nothing wrong.

When we dress provocatively, we invite others to have inappropriate thoughts about us, to look at things they should not be enticed to look at, and to possibly sin in their hearts and minds. People certainly make private choices about how to act upon the things they see – in billboards, in magazines, and on the internet, etc. But that is between them and God. Certainly if they take action involving another person, that becomes their own fault as well. But if we are at fault for causing the private behaviors on account of our choices, those of us who put others in this kind of spiritual harm's way are to blame for the stumbling block, and must "pay" for enticing others to fall. Even if everyone dresses that way at the gym, beach or swimming pool.

  

We live in a world that is challenging enough. With social media, a camera on everything we own, and the ability to share thoughts and messages instantly and worldwide at the click of a button, we must not only be extra careful about what we share and how we share it, but extra careful about how we present ourselves and how others perceive us on account of those choices.

            

There are times when people "check themselves" in my presence, from language choices, or content-of-comment choices, saying things like, "Sorry, rabbi." Why? Am I more obligated to curb my behavior than you are? Am I judging you? Or does my title remind you that there's a Higher Being to Whom we bow, so to speak, and before Whom we must answer one day for our choices?

Any real "Rabbi" will be the first to tell you that rabbis are flawed humans like everyone else, and have similar challenges in terms of stumbling blocks we all face. Everyone "klops Al Cheit" on Yom Kippur. Some rabbis (as well as many devout Jews) take the reminder of the fallout – repercussions from bad choices – seriously, and choose to behave properly as much as possible.

But we all have an obligation to consider the repercussions of the things we say, how we speak, and the ways in which we present ourselves to others in language, dress and commitment to God, in our avoidance of placing pits before others, causing them to stumble.

The donkey and ox are not looking or wanting to step into a pit to injure themselves or die. And those who are exposed to the behaviors that cause them to "fall" would usually prefer to not be tempted by those of us, particularly Torah-observant Jews, who should know better than to present such pitfalls before others who share similar responsibilities in our efforts to maintain a Godly existence.

What are you going to do with the "carcass" of the sin you caused another to commit?

Mishpatim: The "Blessing" of Wealth

This article can also be accessed here on the Jewish Star's website

Parshat Mishpatim

February 12, 2010/ 18 Shvat 5770

Concerning the treatment of those in need, the Torah tells us, “When you lend money to My people, to the poor man among you, do not press him for repayment. [Also] do not take interest from him.” (22:24)

The Midrash Rabba (31:4) says, “Come and see: the person who has wealth, who gives charity to the poor, and lends without interest, is viewed as if he has fulfilled all of the commandments; as it says in Psalms 15:5: ‘He did not give his money with interest, nor did he accept a bribe against the innocent; he who does these shall not falter forever.’”

Furthermore, the Midrash says in 31:5 that Solomon asked of G-d, “If a person asks of You to give him wealth, and You know it will be bad for him, don’t give it to him. But if You see someone who will be pleasant with the gift and will use it appropriately, then give it to him.”

The people of Israel asked of G-d, “Who are Your nation?” G-d answered, “The poor.” As it says in Isaiah 49:13, “Sing, O heavens, and rejoice, O earth, and mountains burst out in song, for the Lord has consoled His people, and He shall have mercy on His poor.”

The difference between human nature and G-d-like nature is that a wealthy individual with poor relatives might not care to be supportive or to acknowledge familial ties (this is not a blanket statement, but is sometimes true), as Proverbs 19:7 says, “All the kinsmen of a poor man hate him…”

G-d’s attitude towards wealth

G-d’s attitude towards wealth, on the other hand, is “And wealth and honor are from before You, and You rule over all, and in Your hand is strength and might, and it is in Your hand to magnify and to strengthen all” (Divrei Hayamim I:29:12); while his attitude towards the poor is expressed in Isaiah 14:32: “Now what shall the messenger of a nation announce? That the Lord has founded Zion, and therein shall the poor of His people shelter themselves.”

In essence, the reason why the world was created such that there are “haves” and “have nots” is to give people the opportunity to do what is just and right in the eyes of G-d (based on Devarim 6:18).
Kindness and virtue are the most G-d-like qualities a person can exhibit: to be a giving person, to be a caring person, to be a loving person, with a full heart.

Charity begins at home

It should begin with family. Of the people I personally know who support destitute or needy family members, they usually begin explaining why they do it by saying, “Nebech. It’s such a sad case. Her husband died (or left her), leaving her with four children.” “Nebech, the kid has no mother, and the father himself is a nebech.” “Nebech, I feel bad for them. I’m the only family they have.”

These are admirable reasons for helping people. Others call it “Jewish guilt.”

It would be even more meaningful if the reason we help is because “I love my family” or “I care about my neighbor” or “I can do my part to help give Jewish children a Jewish education in my community.”

The Midrash says that wealth is a blessing given to those who know what to do with it, who know to use it not just to build big buildings but to help people in the areas of their lives and finances that need the most help — assuming they are trying and struggling, but sometimes even if they are not trying hard enough.

It need not come out of pity. It can come out of love, and passion for doing what is right.