Mishpatim 5773 – Gilayon #786
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Parshat Mishpatim
And should men brawl and collide with a pregnant
woman,
And her fetus come out but
there be no other mishap,
He shall surely be punished according to
What the woman's husband imposes upon him,
As the judges determine
(Shemot 21:22)
Should men
brawl – This refers to Hebrews who are brawling, hitting one the other, as
in 'Why do you hit your fellow'.
(Ibn Ezra, ibid. ibid)
Should men
brawl – With their hands, and this is action more violent than riv – quarrel – as in 'two Hebrew men brawling'… and the term has been applied to a severe
confrontation even though it not be with the hands.
(Shadal,
ibid. ibid).
But there
be no other mishap – to the woman; He shall surely be punished – He
shall compensate for the value of the fetus. But we are not to interpret "But
there be no other mishap" as applying to the fetus, nor "He shall
surely be punished" for what he has done to the woman, for a different
verse reads: "And if there be a mishap, you shall give a life for a life",
and "life for a life" is not applicable to a fetus because it has yet
to come out to the world. And because perhaps it will be a stillborn, or even
if it has completed its full term of pregnancy it is not be called "nefesh" ["soul", a living
being] as long as it has not come out into the world. It is called "his
mother's fetus" but not "a human soul".
(Gur
Aryeh, ibid.)
"You shall not wrong a stranger":
Abraham, ruth and expedited
conversion
Yair Furstenberg
To my son, Shai, as he becomes a Bar Mitzvah
The injunction "You shall not wrong a stranger nor shall you
oppress him" (Shemot
22:20) was interpreted by the Mishnah as referring to 'wronging with
words': "Just as there is overreaching in buying and selling, so is there
wrong done by words, [thus:] One must not ask another, 'What is the price of
this article?' if he has no intention of buying. If a man was a repentant
[sinner] one must not say to him, 'Remember your former deeds.' If he was a sonof converts one must not taunt him, 'Remember the deeds of
your ancestors,' because it is written,' thou shall neither wrong a stranger,
nor oppress him'. (Bava Metsia 4,
note: In the Biblical text, the word for 'stranger' is ger. Talmudic
sources, however, interpret ger as 'convert' and this is the interpretation
followed in this article] The Mishna prohibits a hurtful attitude towards
persons of a lower background that weighs heavily upon their shoulders, but
there is a discernable gap between the two examples discussed in the Mishna. It
is forbidden to remind the penitent of his past, but there is no parallel
prohibition in the case of the proselyte. At first glance it seems that the
wording of the Mishna implies that his descendants alone are protected against
a degrading attitude. The fact that the Mishna focuses in particular on the
children of the converts, and that it emphasizes that they are worthy of being
Israel in every respect and that their ancestry is not be considered or even
recalled in their presence, reflects the tension between the Tanaim with
respect to the chain of lineage of said descendents. This Mishna joins the
discussion and wishes to make the conclusive ruling. Disagreeing with those who
opine that the descendents of the ger, or of a couple of gerim,
are considered themselves to be gerim"
(and therefore are also subjects of the verse "You shall not wrong the
ger"), R. Yosi rules that even if
both parents are gerim, the child is Jewish in every respect. Therefore "Even
if a male convert is married to a female convert, their daughter may
marry a priest" (Mishna Kiddushin 4, 7). In
contradiction to the opinion which forbids descendents of gerim from
reciting in their prayers "our God and God of our fathers" – for
their fathers did indeed have other gods – and in contrast to the prohibition
against descendents of gerim reciting the bikkurim [First Fruits0
declaration – because they cannot say "which God swore to our fathers to
give to us – R. Yosi (and so the Mishna in Bava Metsia) maintains that the
lineage of the descendents of gerim is to be ignored, and they pray as
does all Israel. And this indeed makes sense, because the prohibition against wronging
the children of gerim is not an obligation of each individual, it is
also the obligation of the religious institutions themselves, the synagogue and
the sanctuary.
Yet more. True, there was a not-insignificant
measure of innovation and daring in the Tanaaim's tendency
to ignore the lineage of proselytes descendents who were born into
In the background of the period were isolationist tendencies among Jews of the
which totally forbade the children of gerim from joining the temple
worshippers until the fourth generation.
What about the gerim themselves? Was
their wronging unavoidable? In the Yerushalmi we find a clear voice standing in
opposition to the Mishna, determining that "the ger
himself brings [bikkurim] and recites {the proclamation]. What is the
reason? 'For I have made you father of many nations'. In the past you were a
father of a man. From now one you are father to all the nations". This derasha from the Yerushalmi is most audacious;
Abraham's paternity of all nations is realized the moment they convert, and
therefore they carry his name. According to this approach (which competed with
the position that all believers per se are
considered children of Abraham), they too have the right to recite 'which God
swore to our fathers – Abraham – to give to us – the gerim.'
The law is decided accordingly (Yerushalmi,
Bikkurim
The Yerushalmi's position, in which
conversion constitutes the realization of tying all the nations to Abraham, has
far-reaching ramifications. First, as regards the very
prohibition against wronging. Both Tosaphot and the Mechilta forbid wronging
the ger himself, something not mentioned in the Mishna. To buttress this
they employ various strategies: In the Tosephta (Bava
Metsia,3:25) we
read "If one sees a ger who comes to learn Torah he should not say
to him, 'Look who's coming to learn Torah – one who ate prey and carrion,
unclean animals and creeping things', and it also is written 'But another
person there spoke up and said "And who are their fathers', Does Torah
have a father? Does it not say 'What is his name or his son's name, if you
know it?', and it says 'Property and riches are bequeathed by fathers, but an
efficient wife comes from the Lord'". Torah, then, was given to everyone, regardless
of origin and lineage.
The Mechilta, on the other hand (Tractate
Nezikin, Chap.
homiletical exposition of the verse 'You shall not wrong the ger', refers again to Abraham, teaching us
that he was considered the father of Israel not by virtue of blood relation,
but because they were gerim like himself. Therefore, thanks to him, the
door was flung open to all future gerim. "Abraham called himself 'ger' as is written 'I am a ger v'toshav [sojourning settler] with you' […] and it is
written 'For we are gerim with You, mere transients like our fathers,
our days on earth are like a shadow, with nothing in prospect" […]
beloved are the gerim, for Abraham our father circumcised himself when
he was already 99 years old, so as not to lock the gate before future gerim".
gerim like Abraham, and therefore there is no
difference between them and gerim from the nations of the word, and,
according to the words of the author of the derasha, both are called by
the Lord with the same names of intimacy.
But under discussion is not only the attitude towards the ger,
but also the nature of the appropriate process of conversion. Only according to
the approach which expects the gentiles to convert and to realize their lineage
from Abraham, father of many nations, can one explain the aim of the following
discussion that ends the long topic on conversion (Bavli,
Yevamoth 48b): "It has been taught, R. Hannania b. Raban Gamliel
says: Why are gerim in our time persecuted and suffer afflictions?"
The sad situation of the gerim is perceived almost as decreed by fate,
and the Sages offer various explanations. Along with various views that find
fault with the quality of the proselyte's religious observance, the Talmud adds
an anonymous and surprising opinion: "Others say: Because they delay
entering under the canopy of the Holy Presence". Here it is the delay in
conversion which justifies their punishment. Instead of hurrying to convert and
realize the proper goal of finding shelter beneath the wings of the God
recognized by all, they followed the common path of postponement. Whether
because they knew not exactly what it was all about, or whether they wished to
ponder the nature of this faith and compare it with attractive alternatives, or
whether even when they had already considered themselves as God-fearing, they
did not hasten to identify with the people and the yoke of the Torah.
The words of the "Others" voice a clear expectation of the
gentiles to join, and this becomes their proper path paved by Abraham. Although
the majority delayed conversion, Ruth the Moabite is mentioned as a paradigm
for swift conversion, and with this the topic comes to an end. "May the
Lord reward your deeds. May you have a full recompense
from the Lord, the God of Israel, under whose wings you have sought refuge – because
you hastened and did not delay".
No wonder, then, that in such an ideological milieu the pronounced
tendency of the conversion process in the Talmud is to execute it speedily and
as soon as possible, without delay. In the only Berayta which describes the
conversion process (Ibid. 47a) there is
repeated emphasis upon quick completion of the process: if the convert is
willing to join the Jewish people and its suffering, 'he is accepted
immediately' and after informing him briefly of some of the light and stringent
commandments 'we do not make it difficult for him and we are not exacting with
him (!) and if he accepts we circumcise him immediately… we immerse him
immediately'. The process is so expedited that while yet in the mikveh
we inform him of some of the commandments; he joins almost without any prior knowledge.
Even if only reminding the convert of his parents' origins, and
insulting the ger because of his background are considered 'wronging',
all the more so the oppression of those who walked in the footsteps of Abraham
and Ruth and acted in accordance with the Talmud and hastened to convert, to
share the load of this nation… the gerim.
(Yair Furstenberg teaches
Talmud in the
And these
are the judgments – R.
Eliezer said: Whence is it to be derived that a judge should not trample of the
heads of the people? It is written: 'Do not ascend by
steps [i.e. force your way] upon My alter', and this is followed by: 'And
these are the judgments'.
And these
are the judgments-
said: (Psalm
fear of the Lord is pure, abiding forever'. To what does this refer? When a
person learns midrash, laws and aggadot yet he does not fear sin, his
hands are empty. This may be compared to one who says to his fellow: I have a
thousand measures of wheat, I have a thousand measures
of oil and a thousand of wine. His fellow replied: Do you have storehouses in
which to store them? If you do, all is yours, but if not, you have nothing.
Thus is the case with one who has learned everything, they say to him: If you
have fear of sin, all is yours, as is written (Isaiah 33) '[…] Reverence for the Lord – that was his treasure', therefore it
says 'The fear of the Lord is pure', and the prophet cries out (Ibid.
'Zion will be saved through judgment, her repentant ones, through justice'.
(Shemot
Rabba, Parasha 30)
Temporal
servants are servants of servants – The servant of God alone is free.
(Rabbi
Yehuda HaLevi)
Why was the ear chosen over all other organs of the
body for piercing? Said Rabbi Yochanan ben Zakkai (Kiddushin
22b): This ear, which heard at Sinai "You shall not steal" – yet
went and stole – let it be pierced. And if the person chose to sell himself
into servitude, that ear which heard at Sinai (Vayikra 25:55) "For the Children of Israel are
servants unto Me" – yet went and acquired a master
for himself – let it be pierced.
Rabbi Shimon expounded this verse, deriving a
'precious stone" [i.e., an important ethical principle]: Why were
the door and the doorposts chosen from among all parts of the
house? Said The Holy One, Blessed Be He: Door and doorposts who were witnesses
when I passed over the lintel and the two doorposts and I said "For the
Children of Israel shall be servants unto Me, they are My servants – and
not servants to servants – yet this person went and acquired a master
for himself, let him be pierced in front of them.
(Rashi, Shemot 2
"And he shall serve him forever"
– for the period of a Jubilee – there being no longer period of
time in the Jewish calendar. Exodus to freedom,
is like a new world. Or another possible explanation: He shall return
to his original status of freedom.
(Ibn Ezra, Shemot Ibid.,
ibid.)
If the laborer had already begun to work, but changed
his mind in the middle of the day, he may leave; even if he already received
his wages and has not the money to repay the hirer, he may still retract and
the wages [to be returned] are converted into a debt, as is written: "For
the Children of Israel are servants unto Me" (Vayikra 25:55) – not servants to
servants.
(Shulchan Aruch, Choshen Mishpat 333:3).
And the
Holy One, blessed be He, delivers every man from the
stronger
It is
correct, in my opinion, that it should say "You shall not wrong a stranger
or oppress him" and you should think "for he has none to save him
from your hand:, for you know that you were strangers in the land of Egypt, and
you witnessed the oppression with which Egypt oppressed you, and I wreaked
vengeance upon them, because I see the tear of the oppressed who
have none to comfort them… and I save every man from those stronger
than he, and also the widow and the orphan shall you not oppress,
because I shall hear their cries, for all these live in
uncertainty, and they depend on Me, and in another passage another reason is
added; "For you know the feelings of the stranger, having
yourselves been strangers in the land of Egypt.", in other words,
you know that every stranger, whose spirit is low, and he groans and scrams and
his eyes are always towards God and He will have mercy on them as he had mercy
on you, as is written (2:23), "The
Israelites were groaning under the bondage and cried out; and their cry for
help from the bondage rose up to God," that is to say, not in
their own merit, but rather that He had pity on them because of the labor.
(Ramban, Shemot
22:20)
And you
shall not mistreat a stranger, nor shall you oppress him: Lack of Protest
can also be Counted as Oppression
After it
said do not oppress in the plural, it said if you
indeed oppress him [in the singular], for anyone who sees someone
oppressing an orphan or a widow and does not come to their aid is also thought
of as an oppressor. This is the punishment: if someone is oppressed and the
other does not come to his aid, the punishment is inflicted on them all. That
is why afterwards [it is written] My wrath
will be kindled, and I will slay you [plural] with the sword – all of
you.
(Ibn Ezra Shemot 22:20)
This notion,
i.e., that non-action is also a kind of action, that everyone who is capable of
protesting but does not protest is judged as a collaborator, is found
frequently in Scripture, Mishnah, and the aggada. The author of
the Ha'Amek Davar, who agrees here with Ibn Ezra,
makes the paradoxical comment that the prophet makes a claim of this kind
against the Holy One blessed be He. If He sees injustice and remains silent,
even He is – so to speak – a collaborator with the wrongdoers. And Rabbi
Abraham wrote that anyone who sees someone oppressing an orphan or a widow and
does not come to their aid is also thought of as an oppressor. He is
correct; this is fully supported by a verse from Isaiah (64:
us so very greatly? This means: In that You are
silent You impose affliction.
(Ha'Amek Davar Shemot 22:22)
By
restraining and remaining silent – You become – so to speak – one of our
oppressors.
(Prof. Nehama Leibowitz z"l, Iyyunim le'Sefer Shemot,
pg. 285)
The half-shekel as a metaphor for the chasm between
the infinite and that which is demanded of man
Rabbi Yehuda bar Simon said:
Moshe heard three things from the Almighty, was frightened, and recoiled. When
God said "And they shall make for Me a
sanctuary, and I will dwell therein", Moshe
said: Master of the Universe, "Behold,
the heavens and the heavens of the heavens cannot contain you!" He replied: "Moshe, not
like you imagine, but twenty boards at the north, twenty at the south, eight at
the west, and eight at the east, and
I will compress My
Presence and I will dwell among you." And it is written, "I will
appoint-meeting with you there and I will speak with you".
And when He said: "Command the Children of
and say to them: Of my near-offering, my food…" Said Moshe: "Master of the
Universe, were I to gather all the animals of the world and all the cattle,
they would not suffice for a single offering, and all the trees in the world
would not supply a single fire, as is written: "Lebanon is not fuel
enough, nor its beasts enough for sacrifice!" He replied: "Moshe, not as
you imagine, but "One lamb are you to sacrifice in the morning", and not two together, because I
neither eat nor drink [Literally, "there are neither food nor drink before
me"]. Why? If indeed there were food before me, when you spent forty days
and forty nights with, and food you did not eat, and if there were food before,
you would have eaten. But "a pleasing odor" – be
punctilious in offering a pleasing odor." And when He said, "they
are to give, each man, a ransom for his life", Moshe wondered and asked,
"Who can give full ransom for his life? For it is written "The
price of life is too high, and so one ceases to be, forever," "A
brother cannot redeem a man, or pay his ransom to God." He replied to him: "Not as
you imagine, but rather this shall you give, as this shall
you give." Said Rav Huna in the name of Rav, "Shaddai
– we cannot attain to Him, He is great in power…" (Job 37:23) The Holy One, Blessed Be He, does not inconvenience
Moshe heard this, he proclaimed "Happy the people who have it so." (Psalms
his help (Ibid.
(Tanchuma, Ki Tissa,
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