AND THE LORD SAID TO MOSES, "COME UP TO ME TO THE MOUNTAIN AND REMAIN THERE, AND I WILL GIVE YOU THE STONE TABLETS, THE LAW AND THE COMMANDMENTS, WHICH I HAVE WRITTEN TO INSTRUCT THEM."

(Shemot 24:12)

 

 

It has been taught, R. Jose stated: Neither did the Shekhinah ever descend to earth, nor did Moses or Elijah ever ascend to Heaven, as it is written, The heavens are the heavens of the Lord, but the earth hath He given to the sons of men (Psalms 115).

But did not the Shekhinah descend to earth? Is it not in fact written, And the Lord came down upon Mount Sinai (Shemot19)?

That was above ten handbreadths [from the summit].

But is it not written, And His feet shall stand in that day upon the Mount of Olives (Zachariah 14)?

That will be above ten handbreadths.

But did not Moses and Elijah ascend to Heaven? Is it not in fact written, And Moses went up unto God (Shemot 19)?

[That was] to a level lower than ten [handbreadths from heaven].

But is it not written, And Elijah went up by a whirlwind into heaven (II Kings 2)?

[That was] to a level lower than ten handbreadths.

(Sukka 5a, Soncino translation)

 

Wherever a word denoting approach or contact is employed in the prophetic writings to describe a certain relation between the Almighty and any created being, it has to be understood in this latter sense [viz., to approach mentally]. For, as will be proved in this treatise (II. chap. iv.), the Supreme is incorporeal, and consequently He does not approach or draw near a thing, nor can aught approach or touch Him; for when a being is without corporeality, it cannot occupy space, and all idea of approach, contact, distance, conjunction, separation, touch, or proximity is inapplicable to such a being.

There can be no doubt respecting the verses, The Lord is nigh (karob) unto all them that call upon him (Psalms 140:18); They take delight in approaching (kirbat) to God (Isaiah 58:2); The nearness (kirbat) of God is pleasant to me (Psalms 72:28); all such phrases intimate a spiritual approach, i.e., the attainment of some knowledge, not, however, approach in space.

(RaMBaM: Guide for the Perplexed 1:18, Friedländer tr.)

 

 

On the Rule of Law and Concern for the Weak

Daniel Statman

Scripture, and especially the words of the Prophets, teach us how deeply the Holy One blessed be He is concerned for the wellbeing of the weaker strata of society, the stranger, widow, and orphan, and more generally for the poor and destitute.Due to their economic weakness, which was principally expressed in their not owning any land, they were constant victims of exploitation and guile on the part of the wealthy and the governing powers.Their powerlessness brought God to state that He will "personally" look out for them and take responsibility for them, so that anyone who harms them harms Him as well, and will suffer severe punishment: He executes the judgment of the orphan and widow, and He loves the stranger, to give him bread and clothing (Devarim 10:18); Sing to the Lord, praise the Lord, for He has saved the soul of the poor from the hand of evildoers (Jeremiah 20:13); For He will stand to the right of the needy to save [him] from those who judge his soul (Psalms 109:31); and many further verses written in the same spirit.Sometimes, one may receive the impression that caring for the weak is the principle concern of the King of the Universe, and the chief cause for Him to become angry with His people.

This extreme concern for the poor and destitute seems to stand in a kind of contradiction to one our parasha's unequivocal commands: Nor shall you show deference to a poor man in his dispute (23:3); do not distort the judgment of a poor man in his dispute (23:6), and in other parshiyot, for instance: Cursed is he who distorts the judgment of a stranger, orphan, or widow, and all the people shall say "Amen" (Devarim 27:19).

Why does there seem to be a conflict here?For two reasons.Firstly, inasmuch as we are talking about a monetary claim against the poor man, as long as the claimant is rich and the one against whom the claim is being made poor (or at least the claimant is wealthier than the poor man), he owes him money in any case on the basis of charity and benevolence.What then would be wrong with the court "organizing" this act of charity by ruling in the poor man's favor?In other words, if in terms of socio-economic justice, the economic condition of Reuven is supposed to be in some relationship "F" to Shimon's economic condition, there would seem to be no sense in the court ruling against Shimon, thus distorting relation F, and obliging other societal institutions or individuals to correct the apparent distortion that the court had created.

The other reason for the conflict between concern for those belonging to the weaker strata and the warnings against the court being prejudiced in their favor in court is connected to considerations of affirmative action.Due to their low social status, such people suffer for many years from various kinds of discrimination and exploitation.These oppressive relations find expression in every area of public life.It is more difficult for the poor to start a business, to be accepted to educational institutions, to gain political influence, to be chosen to serve as judges, and so on.In order to re-establish just relations between them and the powerful and wealthy, it is not sufficient to grant them "normal" treatment, because such treatment will not allow them to break through the invisible barriers set up by their inferior socio-economic status.Positive discrimination is required; if it is practiced long enough, it will help establish true social justice.

Another way to express this difficulty is through the notion of compassion.It is reasonable to assume that if someone distorts judgment in the poor man's favor or grants him special treatment, he does so out of compassion.But in our High Holy Days prayers we address God, the Judge of all the Earth, asking that He "have compassion on His people on the Day of Judgment."In the Avinu Malkeinu prayer we ask, "Have compassion for us and answer us, for we are without [good] deeds."That is: we ask God to grant us a favorable judgment, not in accordance with what we deserve, but rather despite what we deserve.Why shouldn't the earthly courts adopt the same policy?Why not have compassion upon the poor man on his day of judgment, just as we ask God to have compassion for us ("See us standing, poor and empty")?

Throughout the generations, the Sages were aware of this problem.The RaMBaM writes:

The court is prohibited from taking pity on the killer; they must not say, "This one has already been killed, what benefit is there in killing the other?"They would then be found delinquent in killing him, for it says, Let not your eyes take pity; clean out the innocent blood.Similarly, the court is prohibited from taking pity on someone who is charged to pay a fine; they should not say, "He is poor, he did not act intentionally."Rather, everything he has is collected from him without any amnesty, as it says, Let no your eyes takes pity.And so, pity is not taken on the poor in monetary cases, that you should not say, "This one is poor, and his legal opponent is rich, since I and the rich man are obligated to sustain him, I shall rule in his favor and he will gain sustenance in an honorable fashion."The Torah has warned us against this: Nor shall you show deference to a poor man in his dispute and it is said, Do not show favor to the poor. (Mishneh Torah, Hilkhot Sanhedrin 20:4)

Whether it is a criminal matter (i.e., the meting out of punishments) or a civil matter (the settlement of financial disputes) the court must punish and require payments "without amnesty."As Rabbi Akiva said in the Mishnah, "Pity is not shown in judgment" (Ketuvot 9:3).

It seems that the answer to these tensions is anchored in the assumption that a society can function only if there is a proper division of labor between its various institutions and between those institutions and the individual.The judicial system can win the public's confidence - confidence without which it cannot do its work - only if it acts without any favoritism, applying the same laws to all those under its jurisdiction.Rabbi Uziel wrote these appropriate words:

Jewish Law always aspired to gain the full confidence of parties to legal action, so that they would have faith in its judges and rulings, and would approach the court with a calm mind, with complete trust and faith, and would accept the judgment lovingly and with submission to the true and just law.That is why they raised up the law court to a lofty and sacred height, so that everyone entering it would enter in awe of the sacred and would only speak the naked truth there without any trickery, and they warned the judges to treat the opposing parties to a law suit as equals in every way, to grant each absolute freedom of speech and to encourage the weaker party not to hold back its claims.They further warned the judges not to show more deference to one than to the other, not to honor the wise or the wealthy, not to believe the one to be righteous or to be suspicious of the other, not to show deference to the elderly, not to skew judgment to favor the poor man's side to a conflict.They further instructed them: "Do not act the counsel's part; when the parties to a suit stand before you let them be guilty in your eyes, do not recognize the face of the wealthy man and do not favor the poor; Nor shall you show deference to a poor man in his dispute. (Responsa Mishpatei Uziel vol. 4 Hoshen Mishpat 1)

Despite the tremendous concern due the stranger, the orphan, and the widow, for the derelict and poor, at the end of the day it is impossible to care for them properly without properly functioning social, political, and judicial institutions.One condition for such functioning is maximal meticulousness (without reaching the "trait of Sodom") that laws be general and equitable, and that they apply fairly and transparently to all citizens.True, in some cases such meticulousness will worsen the condition of the weak, because when the court rules against him, forcing him to pay a fine, his distress increases, and there is no guarantee that his distress will be ameliorated by other social institutions, or by benevolent individuals.In any case, there are no short-cuts in the creation of a fair and just society.If law courts pervert their rulings, even out of good intentions in order to help the poor, the very foundations of society will be undermined.It is necessary to strengthen and fortify the rule of law not only against the evil inclination towards corruption, but also against the good inclination to bend the law for worthy purposes.

Zion shall be redeemed with justice, and they that return of her with righteousness

Prof. Daniel Statman teaches in Haifa University's Department of Philosophy

 

Now these are the ordinances. David said: The fear of the Lord is clean, enduring for ever (Psalms.19:10). How is this so? Because you will find that a man who studies Midrash, Halakhah, and Haggadah, but who has no fear of sin, is left with nothing in his hand. It can be compared to a man who said to his friend, "I have a thousand measures of grain, a thousand of oil, and a thousand of wine." His friend asked him, "Have you store-chambers in which to keep them? If you have, then all those things are yours; but if you have not, then you have nothing."So is it with a man who studies everything; for unto him is said: "Have you fear of sin? If so, you possess everything."For it says, And the stability of your times shall be a hoard of salvation - wisdom and knowledge, and the fear of the Lord, is its storehouse (Isaiah 33:6).Hence does it say, The fear of the Lord is clean.The prophet too, proclaiming aloud, Zion shall be redeemed with justice, and they that return of her with righteousness (ib. 1:27).

(Shemot Rabbah 30, Soncino translation)

 

Temporal servants are servants of servants - The servant of God alone is free.

(Rabbi Yehuda HaLevi)

 

But if the slave says, "I love my master, my wife, and my children. I will not go free,"

his master shall bring him to the judges, and he shall bring him to the door or to the doorpost, and his master shall bore his ear with an awl, and he shall serve him forever.

Why was the ear chosen over all other organs of the body for piercing? Rabbi Yohanan ben Zakkai said (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 SinaiFor the Children of Israel are servants unto Me (Vayikra 25:55) - 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?The Holy One, blessed be He said: Oh 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 [le'olam] - for the period of a Jubilee - there being no longer period of time in the Jewish calendar.Exodus to freedom is like a renewal of the world [olam].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] will be considered a debt, as is written: For the Children of Israel are servants unto Me (Vayikra 25:55) - not servants to servants.

(Shulkhan Arukh, Hoshen Mishpat 333:3).

 

Peace is Achieved through Proper Legal Processes and the Overcoming of Acrimonious Feelings

You established equity [meisharim] (Psalms 99:4). R. Alexandri said: You established straight ways [yesharot] in your world. Someone has a legal dispute with his fellow. They go to court together, accept the verdict, and make peace between them - that is what is meant by You established equity. Someone takes to the road and sees his fellow's ass crouching under its load, he goes and lends a hand, helping him load and unload [the beast]. They enter an inn and he says: "So he loves me, and I thought he hated me!" They immediately begin to converse with each other, and peace dwells between them. What brought peace to them, making them love each other? The fact that he observed that which is written in the Torah: When you see the ass of your enemy lying under its burden and would refrain from raising it, you must nevertheless raise it with him (Shemot 23:5) as it is written: Its ways are ways of pleasantness, and all of its paths are peace (Proverbs 3:17). You who worked righteous judgment in Jacob (Psalms 99:4), And these are the laws that you shall place before them (Shemot 21:1)

(Midrash Tehillim 99)

 

Some Commandments are to be Observed when Opportunities Present Themselves, while Others Require that we Pursue Opportunities to Observe Them

Hillel says: Be of Aaron's students; love peace, pursue peace, love [your fellow] creatures, and draw them near to Torah. "Love peace" is understandable, as we have said, but what of "pursue peace"? It is as we have learned, seek peace and pursue it (Psalms 34:15). And how is it different? All other commandments only apply to a person when an opportunity presents itself, as is written when you come across your enemy's ox (Shemot 23:4), when you build a new house (Devarim 22:8). But peace must always [be pursued]: seek peace and pursue it.

(Massekhet Kallah Rabati, 3:5)

 

The Responsibility of the "Pit's" Owner

When a man opens up a pit - one already dug. This possibility is included because God does not want an animal to die needlessly, and also, the animal's owner will suffer damage.

(Ibn Ezra, Shemot 21:33)

 

Our Sages taught: One may not transfer stones from one's private domain to the public domain (reshut harabim).A man once moved stones from his domain to the public domain. A hassid [pious man] saw him, and said: "Scoundrel, why do you move stones from a domain which is not yours to a domain which is yours?"The man ridiculed the hassid.After some time, the man had to sell his field.Later, as he was walking [through the public domain], he stumbled on those very same stones.He said: "That hassid was right when he said: 'Why do you removes stones from a domain which is not yours to a domain which is yours?'"

(Bava Kama 50b)

 

Scripture deals with man's responsibility for his dealings and behavior which create danger. He is called "owner of the pit", he is "owner of the mishap". And Scripture teaches us that one is liable for damage caused by his property, even such as a "pit in a private domain," For example, one who relinquishes his ownership of his private domain but not of its pit - he is considered to be owner of the pit, and responsibility for the pit remains his."

(Rabbi Shimshon Rafael Hirsch, 21:33)

 

 

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