The Mitzvot – Justice 3

Introduction - we now come to the mitzvot related to matters that today we would study under the rubric of criminal law. Our law differs in several respects with these principles, but it is remarkable to see how much they inform and guide our thinking about justice in our own time.

Let’s use some of the essential notions we learned in “love of neighbor” to guide us in our study and discussion. Let’s consider what the mutual consensus of view about actions in question would be if we, our neighbor, and God were deliberating on the matter. This deliberation could take the form of God, as the Ultimate Lawgiver, the Protector, and Judge; our self as the interpreter of God’s guidance and partner in its implementation; and three “neighbors” - the victim, the alleged criminal, and, in general, the members of the community and their interests. Let’s see where the mitzvot take us in our understanding God’s expectations of how we resolve these interests of all these neighbors in a just and loving way.

XXVII. Read Exodus 21:37; 22:1-3. These verses contain guidance regarding the law related to theft.

A. First, what do we learn? What are the consequences for different sorts of theft?

(1. Theft of an animal requires twofold restitution if the animal is found alive.

2. If it’s a sheep (an animal that does not perform labor), it’s fourfold restitution, if it’s been slaughtered.

3. If it’s an ox (an animal that does perform labor), it’s fivefold restitution, if it’s slaughtered.

4. A thief may be killed if caught breaking in, and a thief, if a bondman, may be sold to make restitution.)

B. OK, as strange as some of this language seems to us, what principles do we derive from it?

1. The victim must be made whole, and the perpetrator must be discouraged from stealing and punished.

2. While the formula may be off in our thinking, the principle seems right: a punishment for loss of an animal that’s been retrieved should reflect the loss of value and production for a period of time, anxiety associated with the loss, and a loss of dignity in being victimized. Further, it should punish the perpetrator. Perhaps this is why it’s a double-the-actual-loss penalty.

3. The penalty for an animal that has been killed should be more severe because the loss is greater. Further, the total loss of a working animal would be greater than one that is not, thus, the fivefold penalty for the former and the fourfold for the latter.

4. Restitution is key here. It has not always been so in our criminal law, though it has become more so in recent times. The wisdom here seems profound. What good is it to the victim if the perpetrator is punished but the victim is not made whole? We don’t have bondmen who are sold today, but people who are found guilty of theft do often have to pay back or risk prison.

5. As to killing the thief who breaks in, one could debate the matter. It seems harsh. On the other hand, it might implicitly suggest that the victim has a fear of the intrusion that goes beyond the potential loss of property but also includes the need for self-defense. Indeed in much commentary this intruder is characterized as a thief who “tunnels” in with the clear purpose of doing harm.

All and all, these principles, taken as a whole, seem sensible and effective in meeting the goals of deterring crime, making whole the victim, punishing the perpetrator, and restoring overall peace and harmony in the community.

XXVIII-XXIX. Read Leviticus 19:11 and Deuteronomy 19:14. Here we see the core language in text prohibiting stealing in any manner. One must not take for oneself something that belongs to another.

A. The second mitzvah here seeks to illustrate such an offense. Why is this one featured, do you think?

(One possibility is that altering land boundaries is a particularly surreptitious, hard-to-detect, and thus more dangerous form of stealing. The Text sometimes focuses on such concerns, as if to say we must be on guard in all ways, but on special guard with those offenses that may more easily go unnoticed, and perhaps that God notices even if we don’t.)

B. Are there other ways to steal from another in which one takes something other than material things? What, and how?

(The sages talk about interacting with others in a deceptive or misleading manner, including doing business in an underhanded manner. Creating a false impression of friendliness or causing another to feel beholden when that feeling is unwarranted - these are examples, too. Earning gratitude or goodwill through devious and cunning tactics is another.)

C. Are there ways in which we steal from God? Illustrate.

(What about wasting the time we have? What about taking away from human potential, ours or others? What if we take of our material well being and serve idols with it instead of God? What if we steal from the good name of another by gossiping or tale-bearing?)

XXX. Read Exodus 20:13 (the portion relating to bearing false witness). Indeed we carry over the ideas we just discussed to this concern. Explain.

(False witness steals another’s right to justice and steals from all by undermining the system created by the mitzvot to administer justice generally. This, thus, is one of the gravest sorts of sins and is seen as a sin against God, the Lawgiver, who gave us the gift of these mitzvot with the expectation that we live justly among ourselves.)

XXXI-XXXII Read Leviticus 19:13 and Leviticus 5:23-24 (the part about robbery). Now we move in our study to guidance regarding robbery. Do you notice something unusual here? What is it, and how do you explain it?

(The penalty for robbery is restoration of the value plus a fifth. This is less severe than the penalty for theft, and by a lot.

Shouldn’t it be reversed? Isn’t robbery the more serious offense, and shouldn’t the penalty for it be more severe?

(One can certainly make the case for that. Robbery entails a direct confrontation, imposing fear and anxiety, and raising the possibility of harm and violence. Our law today imposes greater consequences generally for robbery than theft in most circumstances for these reasons.

Yet, theft is more surreptitious, harder to see and deter, and harder to prove. We would want to deter such bad behavior that might otherwise be easier, more inviting, to do. The commission of theft also suggests the view on the part of the perpetrator that since his/her crime isn’t seen by others, it’s OK. The Ever-watchful One sees, we believe, and we might want to enhance the penalty on one who acts as if He doesn’t.)

XXXIII. Read Exodus 21:18-19 and Leviticus 24:19-20. We talked about these ideas, including this well-known and much misunderstood mitzvah when we journeyed through the Torah last year. Do you remember what it means?

(We are forbidden from assaulting and injuring a fellow human being, and if we maim another or cause them damage in any way, we must make them whole through compensation that is the equivalent of their loss, which includes not only the physical loss, but also the pain, healing, loss of time and income, and the indignity inflicted.

This idea once again of requiring the wrongdoer to compensate the victim for the loss shows how advanced in justice the mitzvot actually are. We have come to these ideas in our own system more and more in recent times. The goal must be making the victim whole, appropriately punishing the wrongdoer, deterring such wrongs, and improving the effectiveness and fairness of the justice system.)

XXXIV. Read Exodus 20:13 and Exodus 21:16.

We’re forbidden from kidnapping another person in this mitzvah. This stealing is considered to be of a person, while the stealing referred to elsewhere in Exodus and in Leviticus involves money and other property. But note the penalty generally is death for the kidnapper, even perhaps without proof the victim is killed. Our laws today don’t typically go that far. Can an argument be made for the position in the mitzvah?

(Our view is that there ought to be every incentive to get the victim back alive and every disincentive to the kidnapper to refrain from harming or killing the victim. I think our legal position makes sense generally today.

But for then? I’m not sure. Perhaps rescue was highly or totally unlikely, with the victim being sold off or disposed of, never to return. Indeed sages often write that the death penalty would not obtain unless the stealing was “complete” in such a way. Kidnapping certainly renders the victim powerless, enslaved, and at great peril. Perhaps it was once tantamount to demise. In any event, kidnapping was seen as one of the very gravest sins.)

XXXV-XXXVIII. Read Exodus 20:13 (the portion about murder), Numbers 35:12, Exodus 23:7, and Exodus 23:2.

We understand why murder is prohibited. This form of killing not only wrongly takes the life of the victim; it diminishes the Divine image. The murderer and indeed all society must not be able to feel as if life can go on in any normal way, unaffected by such a despicable act. The murder of a single soul should be seen as if a whole world was destroyed. The Biblical guidance provides that the murderer be removed from society and be subject, as we will see in greater detail later, to the death penalty.

A. But the question is: why is that guidance accompanied by the next three mitzvot? And where do you predict the sages and rabbis go from there?

(These rules serve to make it very difficult to convict a person of murder and indeed seriously limit the imposition of the death penalty in such cases. The reason may be fundamentally that we fear if we execute a person wrongfully we may be committing a sinful killing ourselves.

As we will discuss later when we get generally to the mitzvot regarding punishment, we, in effect, are given “a garden” where the mitzvah of capital punishment lives, but the sages have created such a high hedge around it, it’s rarely to be used.)

B. Is this a case of the sages “making law,” or are they using other mitzvot reasonably to interpret and implement another? Consider each and all in your answer.

(1. The requirement for a trial is clear and needed as a key element of justice. We must be sure the accused committed the offense of which he/she is accused, and we must be sure the crime committed is the one charged.

2. The prohibition against convicting on the basis of circumstantial evidence is understandable but perhaps not clearly always right. Exodus 23:7 is interpreted as requiring eyewitnesses and putting significant burdens on their behavior and testimony (including their being joint witnesses and that they issue a warning to the perpetrator ahead of the commission of the wrong, if at all possible). It seems a stretch from the written words of the text. Why are the interpreters doing this? Argue it both ways.

(Discussion.)

3. How do we get from this language to the requirement of a super-majority to convict? Is this justified? Why might you think sages find a basis in this language to create even more procedural obstacles to conviction?

(Discuss the principle not to side with a majority to do wrong and the grave concern about wrongly convicting versus the inherent desire to avoid leaning in any way that discourages doing justly. The actual rule was that the decision to convict in a capital case must have two more judges for than against conviction. Since the court couldn’t have an equal number, this meant 23 judges.

Sages add even more procedural requirements to cause the process of conviction to err even more on the side of avoiding putting a person to death.)

XXXIX-XL. Read Deuteronomy 21:1,4. These are among the strangest mitzvot in the Bible. Indeed friends who know I’m teaching on the mitzvot ask me as to these more than any others: how the heck will you and your

fellow learners draw any contemporary meaning from them? OK, what’s the answer?!

(Lots of possibilities. This guidance puts a lot of pressure on leaders in a community to search for, find, and bring the murderer to justice.

Just because the killer is unknown, that does not allow the matter to go unresolved. Indeed it adds to the pressure, as if the blood (and God) cry out for the truth and justice. The gathering of the elders for the sworn oath, the vivid death and loss of a valuable animal, and the loss of cultivation rights in the land - all of this drama says that members of a community cannot be at ease and go on with their lives as if normal if there’s been no justice as to a person who has been murdered. We must be fully devoted to seek and bring to justice whomever commits murder, or else we continue to be burdened with our failure to do so, and our land will be bitter with the victim’s blood and no longer fruitful for us.)

XLI-XLII. Read Numbers 35:25 and Deuteronomy 19:3.

A. What sort of crime are these mitzvot discussing, and what’s the basis for the penalty for it?

(This is for a killing involving a lesser degree of culpability than a conviction for murder. It typically is a wrongful (perhaps negligent) killing, but one without intent. The punishment is a sort of exile to one of the Levitical cities, particularly to one of the six designated cities of refuge. The purpose of the exile is to punish the wrongdoer and to keep society free of those who kill in any wrongful way but also to protect the perpetrator from revenge and perhaps to induce expiation on his part.)

B. Does this sort of penalty make more sense than prison and meet more of our objectives of justice in terms of consequences for wrongdoing? Or would anything like it be feasible today, even if it made sense?

(Discussion: we need not make life normal for the wrongdoer, but could we do better by society, the wrongdoer, and all affected parties if we devised better responses to offenses than that of our current “correctional system?”)

XLIII-XLIV. Read Deuteronomy 25:11-12 This is an odd story indeed. Maimonides interprets this language to mean that we must try to save the life of one who is being pursued and, if necessary (indeed only if reasonably necessary), kill the pursuer in order to do so. So, if we accede to this interpretation, to what important place does it lead us?

(There are justifiable killings. If attacked, and it’s reasonably required, we can kill in self-defense. We can kill to prevent another’s murder. We can kill in a justified war. And, as we learn elsewhere, if there’s an accidental death that does not involve wrongful action on our part, that might be an excusable event.)

XLV-XLVI. Deuteronomy 19:15, 22:25-27. With these and the remaining mitzvot of this section, we come to guidance regarding issues of punishment.

A. But before we get to the substance of the range and type of appropriate punishments, we get a warning in these two mitzvot. What is it?

(We must not punish a person who is innocent. And we must exercise great care to avoid doing so. Our law today doesn’t go as far as this text does in requiring two witnesses, though it has become customary to have two witnesses, say, to the execution of many important documents. But, does this general requirement of two witnesses go too far? What if there were one witness and an abundance of other corroborating evidence in a criminal case?

Discussion. Do note that we begin to see some rabbinic exceptions where only one witness is required. But, btw, how does this use of rabbinic exception make us feel generally as to possible “revision of the law”?)

B. The later verses take us to a broader principle. Do you see what it is?

(If a person is under true duress to engage in a wrongful act, and, as a result, commits a forbidden act under duress, that person is not culpable.

There are even more requirements to assure we only punish wrongdoers who choose to do wrong and are proven with adequate evidence to have done so. Justice requires fairness, perhaps an abundance of it.)

XLVII-XLVIII. Read Deuteronomy 25:2-3.

A. We don’t employ whipping as punishment in our society any longer. But do you have ideas that might explain any underlying, enduring meaning for us in these mitzvot?

(There are a variety of offenses for which rectification can’t be achieved by payment or compensation, and more serious punishment is unwarranted. Some offenses indeed wouldn’t be punishable in our society at all, such as failing to abide by religious standards. So, in our world, cursing neighbors, working on sacred days, preventing an animal from eating of the crop it’s working, infringing oaths, engaging in idolatrous behavior - all this and whatever they might represent are left totally aside, completely for private decision making.

Three questions: 1) are we wrong in the modern era to have delegated so much authority to the private or personal realm, 2) if so, what consequence would we place on such behaviors, and 3) if not, what means of self-regulation might be reasonable to be expected of individuals and in what manner?

Discussion.)

B. Whether we think the community has a role in any of this or we believe it must be “self-policing,” what could a modern form of whipping be?

(One possibility: we might first acknowledge that we’ve done wrong. Then there would be some jolt, perhaps verbal, or other, action to “whip” us out of the patterns of bad behavior that are out of step with the standards by which we should live. Maybe we would be open to this from a loved one or a spiritual leader or teacher. Or, at the least, we might be open to an expectation of a self-imposed correction.

The mitvzvot suggest some, but not excessive, pain in the punishment. The idea is that we ought to be mindful of the mitzvot, acknowledging our responsibility, and being open to being held accountable for our actions. If so, we might cure at least some of the sickness our wrongs have inflicted on us, shed the guilt for them, and believe and live as if justice were more fully expected of us in the world.)

XLIX-L. Read Numbers 35:31-32. What’s the fundamental principle of justice here, and what do you suppose was the departure from ancient ways it represented?

(Wrongdoers in this system were often permitted, and sometimes required to, compensate the victim or the victim’s family for injury done. But payment was not permitted in the case of murder or in the case of a killing that required exile to a city of refuge, as it may have been in other ancient settings. The soul of the victim belongs to God, not the family. Further, if we permitted the rich or others to kill at will and get away with mere payment as a penalty; killing would be far more common, people would be far more at war, and a healthy society would be severely endangered.)

LI-LVII. Read Exodus 21:12, 20, Leviticus 20:10, 14, Deuteronomy 22:24, and Deuteronomy 21:22, 23.

A. We’ve discussed the issues involved in the Biblical sanction of the death penalty before, specifically as to procedural requirements that severely limit the imposition of this penalty. So, the sanction is there, but the rabbis have substantially limited its imposition. What do you think about this balancing and the result it yields? Specifically, do you think the rabbis have gone too far in the procedural high bars they establish?

(Discussion)

B. Let’s talk now about the imposition of the death penalty for sacrilege and blasphemy, acts for which we generally have no penalty at all in our society today. Is there any level of meaning in these mitzvot that makes sense to us today?

(The idea of a physical death penalty for these offenses is not one many would seriously consider today. But should we or our community seek at least to consider, say, the idea of seeking the “death” of the idolatrous self?

If so, “stoning” might be some sort of community or personal revulsion that casts, in effect, the stones of our spirit upon the idolatrous self of the wrongdoer. “Extinction” might involve a sort of separation of the idolater from the community for a range of time depending upon the severity of the offense and the time and effort it takes for the idolatrous habits to die.

If we’re unwilling to impose any sanctions on this behavior, how seriously do we really take these Biblical ideas? Do we truly expect ourselves to live up to Divine standards and hold ourselves accountable for doing so, with consequences? If not, what strength is there in our commitment to this way of life with God? And how enduring is it for our children and our future? How likely is it to slip away, if not die out altogether?

Discussion.)

C. As odd as it seems to our modern eyes, what do we make of the prohibition of leaving a person punished by hanging on the gallows overnight?

(It could be to avoid treating the body in a cruel fashion, as if by “over-punishing.” This excess has the feel of abuse, or showing hatred or excessive power with respect to our duty. The rabbis look at this language as further support for the practice of burying the dead as quickly as possible. The dead deserve dignity in the treatment of the body. All persons are created in the image of God.

While punishment should have a deterrent effect, is it possible that leaving the body could actually evoke sympathy for the wrongdoer? Perhaps once the idolatrous self is made extinct, we must put it away quickly and forever. Reveling in, or dwelling too much on, the untransformed heathen self may invite the thought or even the reality of the sacrilege upon ourselves. Further, the sight of all this could be deemed an affront to God in that the life and death of the idolatrous self is evidence of the failure of at least a piece of God’s creation.)

Conclusion