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 rivquarrel – 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 son

of 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, 10). [Translator's

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 Israel.

In the background of the period were isolationist tendencies among Jews of the Second Commonwealth

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 1:4 [64a]).

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. 12), in its

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". Israel are

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 Hebrew

University)

 

 

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- David

said: (Psalm 19) 'The

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. 1)

'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 21:6)

 

"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 (64:11)Concerning these will You restrain Yourself; will You remain silent and afflict

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 Israel

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 Israel. When

Moshe heard this, he proclaimed "Happy the people who have it so." (Psalms 144:15) and "Happy is he who has the God of Jacob for

his help (Ibid. 146:5).

 (Tanchuma, Ki Tissa, 10)

 

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