Rabbi Yakov Haber
Rabbi Yakov Haber

Mishpat Tzedek - The Torah's Illumination of All of Life

Our parasha begins: "v'shaf'tu es ha'am mishpat tzedek - and they shall judge the nation [with] judgment of righteousness." This verse charges the appointed Jewish judges to utilize mishpat tzedek in their adjudication. What precisely is mishpat tzedek?

Rashi explains that this passage is a commandment to appoint expert, righteous magistrates who will judge honestly without corruption. Ran (D'rashos HaRan 11) elucidates Rashi's interpretation by noting that the Torah, in the very next verse, forbids perverting justice - "lo tateh mishpat". Why then would the Torah have to repeat the same commandment twice? Rashi, quoting Sifrei, therefore interprets that the first verse commands us to appoint righteous judges who will be likely to judge without any corruptive influences.

Ran himself presents a different interpretation, penetrating and comprehensive in its scope, touching upon the very nature of judgment according to Torah law and of the purpose of mitzvos in general. His presentation helps explain many of the difficulties one encounters in analyzing the Torah legal system.

Any civil law system's goal is to create social order. In the language of Chazal: "pray for the welfare of the government, for if not for its fear, people would swallow each other up alive!" (Avos 3:2). Without a system of law and punishment, no society could function. Is this the goal of the civil law portion of the Torah as well? Because of the apparent commonality of the laws of theft, assault, murder, damages and the like of the Torah system and other legal systems, one might suggest that although certain differences exist between the systems, Torah civil law is also basically meant to uphold societal cohesiveness.

However, upon further analysis, this approach is found to be fundamentally flawed. First, the Torah imposes punishments even for crimes which do not affect society such as the desecration of the Shabbos. Second, the Torah's standards of evidence for crime even for theft and certainly for murder are extremely high. Two witnesses unrelated to each other or to the accused, and of high moral stature must testify, their testimony must not contradict at all, and, in the case of murder, the accused must have been warned immediately before the perpetration of the act. Anything less would not allow for a conviction. Indeed, the Talmud (Makkos 7a) states that a Beis Din that executed a criminal once in seventy years would be called a "destructive Beis Din". If the goal of the Jewish courts is merely to allow for smooth societal functioning, it would appear that this goal would not be accomplished at all, as most criminals would get off scot-free able to victimize others indefinitely!

Why then is the Torah's system of punishment so difficult to actually implement and how does the Torah envision a smoothly functioning society? Why is it necessary for the court to punish sinners whose crime does not directly affect society? In answer to these questions, the Ran notes that these questions are all addressed by the catch-phrase of the Torah judicial system: mishpat tzedek. The Torah's law system represents the ideal Divine system. Without two witnesses how can we be assured that the one witness is not lying? Without proper warning immediately preceding the crime, how can we be assured of absolute intent?

Ran explains further that clearly the bein adam laMakom laws of the Torah, between Man and G-d, are designed to connect to the Almighty causing, in the Ran's words, "Divine emanation to flow and His cleaving to us". The Nosein HaTorah decreed that only observance of the mitzvos haTorah would accomplish this goal. Even in the civil realm, regarding the bein adam lachaveiro laws, their societal effect is secondary not primary. Just as keeping Shabbos and the like connects us to G-d, so do the adherence to and proper adjudication of the civil laws of the Torah achieve this goal. Therefore their standards of evidence and warning are perfect in nature representing the ideal system rather than one which would be better suited for the preservation of society.

How then is society meant to function? If criminals would not be punished because of insufficient warning or evidence, what would prevent the collapse of societal order? To this the Ran answers that if the Jewish society is beset chas v'shalom by criminals, the king is licensed to punish them appropriately.[1] He is authorized to punish criminals with lower standards of evidence (see Rambam M'lachim 3:10). The Beis Din is also authorized to punish beyond the letter of the law but, opines the Ran, this is a governmental role which is assumed by the Beis Din when necessary.[2] Not surprising then is the fact that the mitzva to appoint a king also appears in our parasha since his role complements the role of the Beis Din.[3]

This eye-opening approach of the Ran, besides its implications in running a Jewish State in accordance with halacha,[4] also gives us enormous insight into the thrust of the mishp'tei haTorah in general. Many sources, especially Chassidic and Kabbalistic ones, have written how Torah is, on a deeper level, a description, kiv'yachol of HKB"H's G-dliness.[5] G-d has given us the ultimate good by allowing us to study, contemplate, and actualize aspects of His Divinity. In a real sense, then, all mitzvos are fulfillments of v'halachta bidrachav, walking in the ways of Hashem. Whereas it is more intuitive to conceptualize this truth with respect to mitzvos bein adam laMakom such as Shabbos, kashrus, tefillin, and tzitzis[6] it is less intuitive that the laws of theft, damages, and even capital punishment are all reflective of this same Divine system. This idea helps explain why many aspects of Torah law - even the seemingly logical ones - transcend common sense categories.[7] Someone who lights a fire causing the burning of property is exempt from the destruction of hidden objects (tamun) (Bava Kamma 61b). A murderer is exempt from capital punishment if he kills indirectly (Sanhedrin 77a). As any serious student of halacha knows, the laws of Jewish marriage, both its creation via kiddushin and its dissolution via a get, are highly formal, clearly transcending basic concepts of pure societal functioning. Not appreciating the absolute Divine nature of Torah law will often unfortunately lead to a denigration of the Torah system claiming it is unfair. If these laws were merely meant to be practical, then this objection would be understandable. But since they are part of a Divine system, they are as immutable as the laws of Shabbos or Kashrus. To be sure, the halachic system recognizes means to assure that compliance with its laws do allow society to function just as the Torah's institution of a king allows for the punishment of criminals when necessary even beyond the ideal system, but abrogation of the system or utilization of highly questionable "halachic" techniques to circumvent the system are ultimately reflective of the lack of recognition of the absolute centrality of this Divine system.[8]

This then is the directive to the Jewish courts. They are to judge "mishpat tzedek", the absolute Torah ideal system. The Ran's approach helps explain why the Talmud (Sanhedrin 6b) quotes an opinion that p'shara, compromise, in court is forbidden. Should not adjudicating via equity and compromise rather than pure law be encouraged? If the purpose of the court is purely to make peace between the warring parties, then the question is understandable. But if its purpose is to enact a Divine system, giving it physical manifestation in this world, we can readily appreciate this view. Similarly, the statement that every judge who judges a "din emes la'amito" (Shabbos 10a) becomes a partner with G-d in creation readily follows. L'halacha we maintain that the Divine directive of shalom makes p'shara a mitzva and is encouraged, but our attitude toward the pristine Torah law remains the same. This system remains the ultimate ideal. Dovid HaMelech enacted these two ideals, the absolute law together with chessed and shalom by judging according to Torah law and then, out of his own pocket, reimbursing the person who could not afford the payments he had to make upon losing the case.

Rabbeinu B'chaye (introduction to Torah) notes that the details of the Torah are limitless since they represent infinite Divine wisdom. This certainly applies to the civil laws of the Torah as well. This also gives us enormous insight into the centrality of the details of the mitzvos whether bein adam lachaveiro or bein adam laMakom. Not just the broad themes of the Torah connect us to the Nosein HaTorah but its myriad details with their precise formulations also do so. Just as proteins are composed of twenty amino acids and each of these components is composed of thousands of molecules each with their own complex structure, not to speak of the complexity and precision of the subatomic level and the macro-cellular level, so too do the mitzvos haTorah reflect a precise Divine system sometimes understood to some extent, but often transcending even basic human understanding. The analogy to complexity in nature is more than an analogy. As a matter of fact, it is the intricate system of Torah that serves as the blueprint for all of nature - "Hashem looked into the Torah and created the world." Fortunate are the Jewish people that we were granted this Divine, cosmic code through which every aspect of our individual, family, societal and national lives has the potential to be elevated and serve as a nexus for connection to the Creator of all.

[1] Rabbi Daniel Rapp n"y added that in an ideal Torah society, yiras Shamayim would serve as the primary preventative of crime and criminals would be the rare exception perhaps never necessitating the king's intervention.

[2]See Abravanel who diputes Ran on this point.

[3]See Ran who based on his approach explains why the request for a king, as recorded in the book of Shmuel, was considered sinful. The Jewish people wished that the king's system of justice be the sole system. This was a rejection of the Torah's Divine system and, ultimately, of connection to Hashem.

[4]See for example Rav E. Waldenberg, Hilchos Medina and Rav Y. Herzog Techuka l'Yisrael 'al pi haTorah.

[5] See a sampling of these sources in Aspaklaria (mitzva) available at aspaklaria.info.

[6] See the remarkable passage in B'rachos (6a) that G-d, so to speak, wears tefillin and the one in Rosh HaShana (17b) that He dons a tallis. See Rav Kaplan's monographs on tefillin and tzitzis for elucidations of these concepts.

[7] See Rav Y. D. Soloveitchik's presentation on Korach's rebellion.

[8]See also As G-d Commanded Moshe (TorahWeb.org, 2014).

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