Parshat Mishpatim 5783: Torah Text vs the Rabbis in Cases of Man Inflicting Personal Injury Upon His Fellow

Shalom Friends;

This week, our Parshat HaShevua, Parsha Mishpatim is being sponsored by Baruch and Yaffa Swinkin and family of Ramat Beit Shemesh dedicated lilui nishmas for Baruch’s grandfather Micha’el ben Yaakov and for their daughter Racheli’s marriage to Yehonatan YomTov. To the Swinkin family, many thanks for your sponsorship and for your continued kindnesses.

You can celebrate a Simcha — a birth, a Bar/Bat Mitzvah, a Chassuna or other Simcha event in your life, or commemorate a Yahrtzeit of a loved one, or for whatever other reason by sponsoring a Parshat HaShevua.

Please forward to your relatives and friends and encourage them to sponsor a Parshat HaShevua. And please be in contact with me with any questions, or for further details.

Best Regards,

Moshe Burt
skype: mark.burt3

Parshat Mishpatim 5783: Torah Text vs the Rabbis in Cases of Man Inflicting Personal Injury Upon His Fellow

by Moshe Burt

We open this vort with an excerpt from Rabbi Shmuel Goldin’s summary of Parshat Mishpatim in his sefer “Unlocking the Torah Text” on Sefer Shemot (page 165) :

As the B’nei Israel stand rooted at Sinai, Hashem…. transmits to the nation a litany of edicts, primarily interpersonal in nature, that will form the foundation of their newfound responsibilities.

Included in this wide-ranging Parsha are laws concerning the treatment of indentured servants, murder, manslaughter, personal injury, damage caused by one’s property, theft, self-defense, custodial responsibilities, sensitivity to the poor and vulnerable, judicial integrity, Shabbos, Shmita (the Sabbatical year), the Yom Tovim and other areas of personal obligation.

This vort will focus primarily on various understandings of Torah’s true meaning regarding personal injury inflicted by man upon his fellow.

Rabbi Goldin provides context and discussion regarding the Torah text relating to the understandings of the Rabbis he cites concerning laws of personal injury (ibid, pages 178-181) :

…On one of the most well-known legal passages in the Torah, the Rabbis overrule the seemingly clear intent of the [Torah] text.

The Torah states, in the discussion of the laws of personal injury: “[But if there shall be a fatality] And you shall award a life for a life; an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot, a burn for a burn, a wound for a wound, a bruise for a bruise.” (Rabbi Goldin rendering to English Sefer Shemot, Perek 21, posukim 23-25)

In Sefer Vayikra, the text is even clearer: “And if a man shall inflict a wound upon his fellow, as he did so shall be done to him. A break for a break, an eye for an eye, a tooth for a tooth; as a man shall inflict a wound upon a person, so shall be inflicted on him.” (Rabbi Goldin rendering to English Sefer Vayikra, Perek 24, posukim 19-20)

The Rabbis in the Talmud, however, maintain that the Torah never intended to mandate physical punishment in personal injury cases, Instead, they say, the text actually authorizes financial restitution. The oft-quoted phrase “an eye for an eye,” for example, means that the perpetrator must pay the monetary value commensurate with the victim’s injury.

So great was the gap between the face value of the Torah text and the legal conclusions recorded in the Talmud, that the Rambam, in his Halachic… Mishne Torah, feels the need to stress that the decision to levy monetary compensation in personal injury cases is not the result of later Rabbinic legislation: “All this is law given to Moshe in our hands, and thus did our ancestors rule in the court of Yehoshua and in the court of Shmuel from Rama and in each and every court which has stood from the time of Moshe… to this day.” (Rabbi Goldin citing Rambam, Mishne Torah, Hilchot Chovel U’mazik 1:6)

An easily missed phrase in the Rambam’s above cited codification of the law provides a glimpse into the Torah’s true intent: The Torah’s statement “”As a man shall inflict a wound upon a person, so shall be inflicted upon him” does not mean that we should physically injure the perpetrator, but that the perpetrator is deserving of losing his limb and must therefore pay financial restitution.” (Rabbi Goldin citing Rambam, Mishne Torah, Hilchot Chovel U’mazik 1:3)

Apparently, the Rambam believes, as many other scholars who echo the same sentiment, that the Torah confronts a serious dilemma as it moves to convey its deeply nuanced approach to cases of personal injury: using the tools at its disposal, how can Halacha best reflect the discrepancy between “deserved” and actual punishment?

The gravity of the crime is such that, on a theoretical level of “deserved punishment,” the case belongs squarely in the realm of dinei nefashot (capital law). The perpetrator truly merits physical loss of limb in return for the damage inflicted upon his victim. Torah law, however, will not consider physical mutilation as a possible punishment for a crime. The penalty must therefore be commuted into financial terms.

Had the Torah, however, mandated financial payment from the outset, the full gravity of the crime would not have been conveyed. The event would have been consigned to the realm of dinei mamonot (monetary crimes), and the precious nature of human life and limb would have been diminished.

Torah law thus finds a way to memorialize both the “deserved” and the “actual” punishments within the Halachic code.

On the one hand, there are crimes committed either intentionally, maliciously, or unintentionally, by a Jew upon another Jew resulting from animus (noun: strong dislike or enmity; hostile attitude; animosity) between them. Or an accidental, unintentional, or personal crime of malice committed either by a Jew against a non-Jew, or a non-Jew against a Jew where there could be animus toward one or between both individuals. In these such cases, it would seem that we can readily understand the Torah text which first states the “deserved” punishment emphasizing the gravity of the event and then providing the “actual” punishment in financial terms.

But could it be, and this question could seem politically incorrect, that there would/could possibly be a notable exception regarding the entire analysis and distinction between “deserved” and “actual” punishment judicially regarding personal bodily crime resulting in injury or fatality where an attack is found to be terror-based by an alien enemy endangering national security whose will is to kill Jews individually, or en masse with the aim of eradicating us and whose terror war against us, in all of its various dimensions, seeking our annihilation continues to this very day? This question boils down to: Is the ongoing terror war against Am Yisrael comparable to a Milchamot Mitzvah with its separate Halachot?

This author now cites excerpts from a vort on Parshiyot Matos-Masei from two years ago where Am Yisrael was to exact revenge against the Bila’am and the Midianites, and later, to go to war to expel an enemy who, if not expelled, could seemingly wage a long war of attrition against Am Yisrael as we face to this day:

Mahmoud Abbas Yemachshmo… continues to pay off families of terrorists who kill Jews. Israel, of course keeps transferring money to the PA.

Parshat Matos… relates the events of the legion of Am Yisrael going to fight Hashem’s wars against the kings of Midian and the evil Bila’am…

Torah relates both Moshe’s instructions and describes the legion going off to war, winning and the extent of the spoils:

“Moshe spoke to the people, saying, ‘Arm men from among yourselves for the army that they may be against Midian to inflict Hashem’s vengeance against Midian.” (Rendered to English in “The Sapirstein Edition, Torah with Rashi Commentary,” Sefer Bamidbar, Perek 31, posuk 3)

Parsha Masei teaches us that “Hashem spoke to Moshe… by the Jordan, at Yericho” telling him to speak to the B’nai Yisrael and tell them (Artscroll Stone Chumash, Sefer Bamidbar, Peek 33, p’sukim 51-56, pages 922-923);

“When you cross the Jordan to the land of Canaan, you shall drive out all of the inhabitants of the Land before you…. You shall possess the Land as an inheritance by lot to your families…. But if you do not drive out the inhabitants of the Land before you, those of them whom you leave shall be pins in your eyes and thorns in your sides, and they will harass you upon the Land in which you dwell. And it shall be that what I had meant to do to them, I shall do to you. ” (Rendered to English in the Artscroll Stone Chumash, Sefer Bamidbar, Perek 33, posukim 51-56, pages 922-923)

Rabbi Artscroll (Artscroll Stone Chumash, page 923) then cites the Rashbam and follows with it’s own commentary;

… If they fail to do so, they will suffer the fate Hashem had intended to impose upon the Canaanites, and be driven out.

Only in the perspective of Hashem’s wisdom can this passage be understood. No human ruler has the right to decree that an entire population is to be… exiled, but Hashem revealed that the Canaanite presence was incompatible with both the Land’s holiness and Israel’s mission on earth. History is the most conclusive proof of this, for the fact was that the Jews could not bring themselves to eliminate all of the Canaanites, with the result that the Jews were drawn to idolatry, debauchery, and were in turn periodically oppressed and finally exiled.

Granted that the wars fought by our ancestors as cited above were Divinely-Mandated wars, this author has often heard, including from HaRav Chaim Zev Malinowitz, z”l, when he spoke in the aftermath of Har Nof Massacre in November, 2014 (re: the 2nd point of his talk)”pins in your eyes and thorns in your sides, and they will harass you upon the Land in which you dwell” analogy invoked regarding our security and sovereignty in Eretz Yisrael and today’s terror war against us.

Rabbi Goldin concludes (“Unlocking the Torah Text” on Sefer Shemot, page 184) :

Each phrase of the Torah must be analyzed against the backdrop of surrounding textual flow, other sources in the written text and related Oral Law. Only such complete, comprehensive study reveals the true depth and meaning of the Biblical text.

May we, the B’nei Yisrael be zocha that our brethren — the refugee families from Gush Katif be permanently settled and be made totally whole — be totally restituted for all that was stolen from them, that the thrice expelled families of Amona be restored to their rebuilt homes and the oft-destroyed Yeshiva buildings in Homesh be rebuilt, all at total government expense; due to alt-leftist-agendized, supreme court legalized Yassamnik gunpoint. Baruch Hashem that our dear brother Jonathan Pollard is now in his third year at home in Eretz Yisrael and has embarked on a new chapter in his life. May Esther Yocheved bat Yechiel Avraham have an aliyah in Shemayim and may her spirit and memory continue to lift Jonathan to at least 120 years. May the MIAs be liberated alive and returned to us in ways befitting Al Kiddush Hashem — as with the return in April, 2019, via Russia, of the remains of Zachariah Baumel, as should the remains of the two chayalim from the Gaza War of eight years ago. May we have the courage and strength to stand up and physically prevent the possibility of Chas V’Challila any future eviction of Jews from their homes and prevent Chas V’Challila the handing of Jewish land over to anyone, let alone to enemies sworn to Israel’s and Judaism’s destruction and eradication. And may we soon and finally see the total end to the Communist Chinese corona virus pandemic and all like viruses. May we fulfill Hashem’s blueprint of B’nei Yisrael as a Unique people — an Am Segula, not to be reckoned with as with “the nations” and may we be zocha to see the Moshiach, the Ge’ula Shlaima, as Dov Shurin sings; “Ki Karov Yom Hashem Al’Kol HaGoyim”, the Ultimate Redemption, bimhayrah b’yamainu — speedily, in our time”, — Achshav, Chik Chuk, Miyad, Etmol!!!

Good Shabbos!
Moshe Burt, an Oleh, is a commentator on news and events in Israel and Founder and Director of The Sefer Torah Recycling Network. He lives in Ramat Beit Shemesh.