Mishpatim | Sanctity in Jewish Civil Law

 

 

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With gratitude and in honor of the bar mitzvah,
this year b'ezrat Hashem, of our twin sons,
Michael and Joshua - Steven Weiner and Lisa Wise

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Translated by Kaeren Fish

 

 

If you take your neighbor’s garment as a pledge, you shall return it to him by sundown. For it is his only covering; it is his garment for his skin – in what shall he sleep? And it shall be, when he cries out to Me, that I shall hear, for I am merciful. (Shemot 22:25-26)

 

This is most surprising. The Torah goes out of its way, in a most unusual fashion, to explain and justify a law which appears even at first glance to be entirely reasonable: we are required to aid and support an unfortunate debtor who is forced to hand over his garment as a pledge. What is the meaning of the seemingly superfluous elaboration, emphasizing the distress of this unfortunate position in such dramatic terms?

 

I once heard the following explanation cited in the name of the Seridei Eish.  We must not lose sight of what this law is actually talking about. The entire purpose of the pledge is to ensure that the debt will be repaid. Here, the Torah is commanding that at night you must return the pledge. In the morning, you will go back to the home of the debtor: “You shall stand outside and the man to whom you are lending shall bring out the pledge to you” (Devarim 24:11). In the night, you are to return the pledge again, and in the morning you take it back. And so the garment is passed backwards and forwards, every day and every night. Under these circumstances, is it reasonable to think that the debtor is going to repay the debt? Is the pledge fulfilling its purpose? It seems highly doubtful; if the whole arrangement is so convenient for him, why should the debtor pay?

 

We are forced to conclude that what the Torah is demanding is unreasonable and even unjust. In this situation, where the borrower is so poor that the garment that he gives as a pledge must be returned at night so he will have something with which to cover himself, the chances of a creditor recovering his loan are very low.

 

And yet – is it then more just that the debtor be left so cold that he cannot sleep at night? The creditor may be in the right – but does this justify him causing such intense suffering to a poor debtor? In a situation of this sort, it would be quite easy to arrive at a formal judicial ruling in favor of the creditor, but the justice demanded by the Torah includes a view of the individual involved. The proper response is not to insist that the law “drive through the mountain,” leaving the welfare authorities to deal with the debtor. Rather, the Torah anchors the principles of kindness and righteousness within the legal system itself.

 

The Torah could have presented any of a broad range of other verses to command us to lend assistance to the poor: “You shall surely help the poor,” “You shall surely show compassion to the poor of your people,” or the suchlike. Instead, it emphasizes the human aspect of civil law itself. It demands that judges be capable of observing, evaluating and understanding the person standing in judgment. It demands of them not to be right, but rather to be wise, and this wisdom is itself Divine justice.

 

The current world-wide economic crisis has shown ample examples of banks that have lost billions of dollars as a result of unsuccessful business decisions, and loans to huge corporations which have been entirely lost. The banks are unable to recover their funds. But does this in any way justify crushing private borrowers who are having difficulty with their mortgage payments? Sadly, we see the banks using every possible means of debt collection when it comes to individual clients, bringing them untold hardships. This may represent justice, in the dry, formal sense of the term, but this is not the justice prescribed in the Torah.

 

This is the meaning of the verse, “He has not dealt so with any other nation, and they have not known [His] mishpatim (laws), halleluya” (Tehillim 147:20). Obviously, the verse cannot mean that no other nation has a legal system. Rather, it is teaching that only Am Yisrael has a legal system in which human sensitivity is anchored in the law itself, and in which principles of kindness help to determine the definition of justice.

 

“The laws of God are true; they are righteous altogether” (Tehillim 19:10).

 

 

(This sicha was delivered on Shabbat parashat Mishpatim 5768 [2008].)