SALT | Mishpatim 5785

MOTZAEI

Among the many laws found in Parashat Mishpatim is the prohibition against abusing the weaker and more sensitive members of society, specifically widows and orphans: "You shall not ill-treat any widow or orphan. If you do mistreat him, it shall be that when he cries out to Me, I will hear his outcry. My anger shall blaze forth and I will put you to the sword… " (22:21-23).

Three times in this verse (22) the Torah employs a "kefel lashon" - a double expression, which generally connotes emphasis: "im ANEI TE'ANEI oto" - "If you do mistreat him"; "im TZA'OK YITZ'AK eilai" - "if he calls out to Me"; "SHAMO'A ESHMA tza'akato" - "I will hear his outcry." What does the Torah seek to convey with this repeated emphasis?

The Rebbe of Kotzk answers by examining the particular gravity of this prohibition, the abuse of widows and orphans. Needless to say, the Torah prohibits the verbal and monetary abuse of anybody. But the prohibition against maltreating the widow and orphan is particularly severe because of its effects on the victim. When a widow feels she is being taking advantage of, she instinctively thinks of her loss. She is reminded, ever so cruelly, of her husband's death, which has left her disadvantaged and vulnerable. An orphan, too, will immediately associate his mistreatment with his helplessness that resulted from his parent's death. The Torah therefore refers to such abuse with a double expression, "anei te'anei," alluding to the two stages of suffering endured. In response, the Almighty threatens to "hear" - "SHAMO'A ESHMA" - the victim's outcry. He takes into account both the abuse itself as well as the additional grief and anguish resulting from it.

It thus turns out that one's treatment of others is assessed not only based on his actions and speech per se, but based on the specific circumstances, as well. We are to take into consideration the particular sensitivities of those with whom we deal and must act and speak accordingly. Behavior that may be excused when dealing with one person might be abusive and cruel when directed towards another. The double expressions employed by the Torah in this verse reminds us to always think carefully about the specific context at hand before acting or speaking.

SUNDAY

Yesterday we looked at the specific prohibition presented in Parashat Mishpatim against abusing widows and orphans (22:21). As we saw, God Himself promises, as it were, to avenge their suffering should they be mistreated: "If you do mistreat him, it shall be that when he cries out to Me, I will hear his outcry. My anger shall blaze forth and I will put you to the sword, and your own wives shall become widows and your children orphans" (22:22-23). A close examination of these two verses reveals a sudden shift from singular to plural tense. In the first verse, God speaks of an individual mistreating the widow or orphan - "Im anei te'anei." The following verse, which forewarns of God's vengeance, is written in the plural form - "ve-haragti etchem be-charev, ve-hayu nesheikhem… u-vneikhem… " How do we explain this grammatical anomaly?

It appears that Rav Shimshon Refael Hirsch had this very question in mind as he wrote his commentary on these verses, in which he sheds new light on the meaning behind God's warning. Why does an oppressed orphan or widow "cry out" to God? Presumably, because he/she has no one else to cry out to. The Torah refers here not to a single, isolated incident of abuse, but rather to a corrupt society where the leadership makes no effort to protect the rights of the underprivileged. As Rav Hirsch notes in this context, the prophet Yeshayahu bemoans this very unfortunate reality that he witnessed in Jerusalem: "Your rulers are rogues… They do not judge the case of the orphan, and the widow's cause never reaches them" (Yeshayahu 1:23). Realizing that he has no one to whom to turn, that no one concerns himself with the plight of the abused, the tormented orphan can turn only to the Almighty. God promises that as opposed to the leaders and authority figures who gave the orphan a deaf ear, "I will hear his outcry."

This approach to these verses easily resolves the difficulty of the shift from singular to plural form. The Torah describes a situation of an individual's mistreatment of an orphan or widow which was enabled by a corrupt system of government which shows no concern for the underprivileged. God's wrath is then kindled against the society at large for its neglect of those in need and its insensitivity to the plight of the vulnerable members of the community.

MONDAY

We read in Parashat Mishpatim the law of "ba ba-machteret," a special provision concerning a thief breaking into a house: "If the thief is seized while tunneling, and he is beaten to death, there is no bloodguilt for him" (22:1). Rashi, based on the Gemara in Masekhet Sanhedrin (62), explains that a thief breaking into a home may be killed. The Gemara bases this halakha on the principle of, "ein adam ma'amid atzmo al mamono" - we assume that a person will attempt to protect his property against intruders. By extension, then, we assume that the thief anticipates confrontation with the homeowner and is prepared to kill him. This assumption renders the burglar a "rodef," a "pursuer," attempting to kill, in which case others may come kill him to defend the intended victim.

Later in Masekhet Sanhedrin (72b), the Gemara observes that this verse does not specify who kills the burglar. The verse rather says simply, "ve-huka" - the thief is beaten to death. There is no indication in this verse as to whether it was the homeowner or a third party who killed the intruder. The Gemara derives from this ambiguity that anybody may kill the thief, not only the homeowner, whom we presume the burglar is prepared to kill. The Gemara explains that were it not for this textual indication, we would have limited this provision to the homeowner, and have forbidden the killing of this intruder by any outsider.

Why is this so? Once we have determined intent to kill, thus inviting the application of the standard halakha of rodef, why would we restrict this license to kill? Generally, anyone may and in fact should kill the rodef, the pursuer. Why should this case be any different?

Rav Avraham Yitzchak Sorotzkin, in his "Gevurat Yitzchak," answers by carefully dissecting this halakha of rodef. What precisely entitles someone to kill a pursuer? Rav Chayim Brisker (in Hilkhot Rotzei'ach) argues that the interest in saving the victim's life itself does not provide sufficient grounds to allow killing the pursuer. This is due to a principle in halakha called, "ein dochin nefesh mipenei nefesh" - we may not discard one life in favor of another. In a rodef situation, one person will be killed; either the intended victim or the pursuer. We do not have the right to make this decision. What produces the license to kill the pursuer is a different notion - a "chiyuv mita" (death sentence) issued by the Torah upon him. The Torah legislates that one pursuing another to kill him deserves to be killed. This entitles - and in fact obligates - onlookers to intervene and kill the pursuer.

In certain situations, a person may technically attempt to kill another but will not have a chiyuv mita issued against him. Rav Sorotzkin suggests that one could have viewed the case of ba ba-machteret as such an example. The burglar has not broken into the house to kill; he wants to steal money, not to take a life. Thus, although technically he might be deemed a pursuer, in that he is prepared to kill, one could have argued that no chiyuv mita can be applied in this case, since his primary intent is not to kill.

This, Rav Sorotzkin explains, answers our original question. Before extracting from the verse the permission for all people to kill the burglar, one would have thought that he does not bear a chiyuv mita. As such, the principle of "ein dochin nefesh mipenei nefesh" would prevent the license to kill the ba ba-machteret. Only the homeowner, who is himself threatened, would have the right to kill the burglar because of a separate halakha sanctioning killing in self defense: "Ha-ba le-horgecha hashkem ve-horgo" ("Someone who comes to kill you - arise and kill him"). Therefore, only once the verse informs us otherwise can we extend the license to all people, besides the intended victim himself.

TUESDAY

Yesterday we discussed the halakha of "ba ba-machteret," introduced in Parashat Mishpatim, by which we assume that a burglar breaking into a home is prepared to kill the homeowner should he attempt to resist the theft. This then activates the halakha of "rodef," which allows for the killing of anyone attempting to himself kill another person.

Although the Gemara clearly classifies the ba ba-machteret under the general category of rodef, an important distinction between the two arises from the writings of the Rambam. In presenting the standard halakha of rodef, the Rambam (Hilkhot Rotzei'ach 1:6) describes it as a mitzva for onlookers to come to the aid of the intended victim and kill the assailant. By contrast, when the Rambam introduces the halakha of ba ba-machteret (Hilkhot Geneiva 9:7), he writes that people have permission to kill the burglar, mentioning nothing about a mitzva or obligation.

Why does the Rambam distinguish between ba ba-machteret and rodef, if the Gemara explicitly describes the former as an instance of the latter?

The answer seems to lie in the two-step process involved in the provision of rodef. Apparently, according to the Rambam, this halakha itself does not introduce any mitzva to kill the pursuer. Rather, the halakha of rodef merely sanctions this killing. This is the first stage. Once the Torah permits onlookers to kill the rodef, the general mitzva of saving lives now requires that they do so; once one is given an opportunity to save someone's life, he bears an obligation to do so. But this obligation stems not from the concept of rodef, but rather from the general mitzva of saving lives. The concept of rodef merely "sets the stage" for this obligation to take effect, by permitting the killing of the assailant.

In the case of ba ba-machteret, however, we do not reach this second stage. Recall that this institution stems from our assumption that a person will attempt to forcefully resist the theft of his property. This yields a second assumption, that the burglar, aware of this human tendency, is prepared to kill the homeowner should he attempt to resist the burglary. In most situations, however, the homeowner can easily save his life by remaining passive and allowing the thief to take whatever property he wants. Given that his life is not actually in immediate danger, the mitzva to save his life obviously cannot take effect. Only the rule of rodef applies, by which the burglar brings upon himself a chiyuv mita (death sentence) which allows other people to kill him. No mitzva, however, is involved in this killing.

WEDNESDAY

Towards the end of Parashat Mishpatim we read of Benei Yisrael's famous proclamation of "na'aseh ve-nishma" - we will do and we will hear (24:7). Several Midrashim elaborate on the singular significance of this expression of loyalty and the level of commitment it reveals on Benei Yisrael's part. One famous Midrashic passage (in Yalkut Shimoni) records God's response to Benei Yisrael's declaration. He asks, "Who disclosed to you this secret, of which the ministering angels make use?" Somehow, the concept embodied by the acceptance of "nishma ve-nishma" reflected some angelic quality that Benei Yisrael had developed. In what way does this declaration relate to the mal'akhei ha-sharet (ministering angels)?

The Sha'arei Simcha explains based on the Seforno's approach to the expression "na'aseh ve-nishma." According to the Seforno, Benei Yisrael here declare, "We will do in order to listen," or, more accurately, "… in order to obey." They proclaim their intention to observe and perform the mitzvot for the sole purpose of obeying the divine command. The Seforno here invokes the famous mishna in Pirkei Avot, "Do not be like servants who serve their master in order to receive a reward; be rather like servants who serve their master even not to receive a reward" (Avot 1:3). Benei Yisrael promise to devote themselves loyally to the dictates of the Torah without any expectation of reward, purely for the sake of worshipping and fulfilling the will of the Almighty.

Herein, the Sha'arei Simcha suggests, lies the relationship between "na'aseh ve-nishma" and the ministering angels. Angels (however we understand what precisely an "angel" is) have no ulterior motives for their service of God. They have no personal needs or desires; their sole interest is to obey God's word. They anticipate nothing in return. It is this "secret" that Benei Yisrael express by declaring "na'aseh ve-nishma." They declare their unwavering and unconditional loyalty to God, like the angels, without any ulterior motive or interest.

This may also help explain a different Midrash cited by some sources: "When Yisrael said 'na'aseh ve-nishma,' the evil inclination was uprooted from their hearts." How did this proclamation signify the elimination of the yetzer ha-ra from Benei Yisrael's hearts? In its most general sense, the "yetzer ha-ra" refers to man's innate selfishness and egoism, his preoccupation with his own wants and desires. Here, at Mount Sinai, Benei Yisrael announce the reversal of this tendency, their preparedness to devote their time and energies to the Almighty, rather than to themselves.

THURSDAY

Parashat Mishpatim introduces us to the prohibition against taking interest on loans given to fellow Jews: "If you lend money to My people, to the poor among you, do not act toward them as a creditor: exact no interest from them" (22:24). Chazal note that the first word in this verse, "im" ("if"), could be potentially misleading. It might give the impression that one has the option of lending or not lending money to those in need. In truth, however, this is not the case at all. The verse in Sefer Devarim (15:8) explicitly requires lending money to the poor, even as the sabbatical year approaches and there exists the risk of the debt's cancellation. Therefore, the Mekhilta, cited here by Rashi, informs us that we cannot interpret the word "im" in this verse according to its usual definition. In this instance, we must understand "im" to mean "when," rather than the conditional "if."

The question, of course, becomes, why did the Torah employ potentially misleading syntax in formulating this verse? Why does it write "if" when really lending money constitutes an obligation, rather than an option?

Ibn Ezra suggests reading the verse as follows: "If you have the means to lend to My people… " The conditional form is used because not everyone is required to lend to the poor in all circumstances; only those with the capability of giving out loans must do so. Similarly, Seforno explains the verse as qualifying the required loan to times when there are those in need; ideally, when Am Yisrael is deserving, poverty is eliminated and interest-free loans become unnecessary. The Torah therefore writes, "If it becomes necessary for you to give a loan… "

However, Nechama Leibowitz, in her Studies to this parasha, raises a compelling objection to both these interpretations: Why would the Torah find it necessary to hinge the lending of money on these two conditions? Is it not obvious that one lends only when he has the means to do so and when there is a borrower in need of funds?

Professor Leibowitz thus proceeds to bring two other explanations for the use of the word "im" in this verse. The Sefer Chasidim claims that this verse alludes to the various situations in which this obligation does not apply, specifically when dealing with an unscrupulous borrower. For example, one need not lend to someone who routinely borrows without repaying, or to one with sufficient funds but who feigns poverty. The same is true of someone who spends all his money on himself and leaves his wife and children hungry. The conditional form of the verse instructs us to ensure that the borrower whom we seek to assist is indeed needy and deserving of our help.

A much different approach is taken by the Maharal of Prague, in his Gur Aryeh. The Torah describes money-lending as an option because that is precisely how it wants the lender to view it. This mitzva requires not only the giving of a loan, but a certain attitude, as well, an unhesitating, enthusiastic willingness to assist those in need. The Torah specifically mandates such an attitude in Parashat Re'ei: "You shall wholeheartedly give him and not with an ill grace" (Devarim 15:10). Giving loans only to obey the divine command does not adequately fulfill this mitzva. We are bidden not only to give, but to want to give, to feel good about giving, and to give willingly and voluntarily, rather than begrudgingly.

FRIDAY

Parashat Mishpatim begins with the laws of the "eved ivri," the indentured Hebrew servant who is set free after six years of service. If he so wishes, he may remain in his master's service after six years, and the Torah prescribes a specific ritual to be performed in such a case, whereby the master pierces the servant's ear near a door. Rashi cites Chazal's explanation for this ceremony, as it appears in Masekhet Kiddushin 22b: "The ear that heard at Mount Sinai, 'For it is to Me that the Israelites are slaves' and went ahead and acquired for himself a master - shall be pierced." The ear-piercing serves as a punishment of sorts to the servant, injuring the very ear that heard God declare His exclusive claim to Benei Yisrael as His servants.

The obvious difficulty with this explanation is why this same punishment is not administered to the violator of any halakha in the Torah. Since all the details of Torah law were transmitted at Sinai (see Rashi, beginning of Parashat Behar), why is this specific issue of exclusive servitude to God singled out for punishment through ear-piercing? Furthermore, according to many (perhaps most) views among Chazal and the Rishonim, Benei Yisrael's ears did not actually hear God make this declaration. As Rashi brings in his commentary to Parashat Yitro (19:19), Benei Yisrael (according to this view) heard only the first two commandments - "I am the Lord your God" and "You shall have no other gods besides Me" - directly from the Almighty. The other eight, not to mention the rest of the Torah, they heard via Moshe Rabbenu. How, then, can the Gemara describe the servant's ear as having heard God declare, "For it is to Me that the Israelites are slaves"?

Rav Zalman Baurer, as recorded in "Divrei Mahariz" (published 1927), explains that Chazal here in fact refer specifically to the first two commandments. God declares in the first commandment, "I am the Lord your God who took you from the land of Egypt." During their period of bondage, Benei Yisrael could not take upon themselves the yoke of Heaven; so long as they were subject to the authority of the Egyptian government, they could not be totally subject to the authority of the Almighty. He therefore proclaims, "I am the Lord your God who took you from the land of Egypt" to be your exclusive Master. Therefore, "You shall have no other gods ['elohim'] besides Me." The exclusivity of our subservience to God precludes the possibility of conflicting allegiances or loyalties. Rav Baurer goes so far as to suggest that "elohim" in this verse may actually refer not only to foreign deities, but to any allegiance that conflicts with one's subservience to God.

With this in mind, we can return to Chazal's comment in Kiddushin and the piercing of the indentured servant's ear. He himself personally heard God proclaim the first two commandments, which embody the message of, "For it is to Me that the Israelites are slaves." This fundamental concept, which, in a certain sense, forms the basis of the entire relationship between God and Am Yisrael, had to be heard directly from God, and not through the medium of Moshe Rabbenu. The ear that did not properly absorb this message is pierced; the person who willingly subjects himself to the servitude of another human being must forever more wear a sign representing his flawed inculcation of this idea, that we are slaves only to the Almighty.

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