The Mitzvot - Justice 4

Introduction - we come now to a consideration of the mitzvot that deal first with requirements we might today find in tort actions - disputes involving allegations of the negligent infliction of damage on another - as well as in commercial disputes. Also, we will discuss issues related to the demands of justice related to leadership in the community, here, more specifically, with respect to matters involving the king. Finally, we will consider key principles of justice as they relate to the conduct of war.

LVIII-LIX. Read Exodus 21:28, 35 and Exodus 22:4. This idea of civil damage to others is wonderfully illustrated in mitzvot specifically discussing injuries caused by an ox, a pit, a beast, fire, and other things/actions that are abnormally dangerous.

In the first instance, if an ox kills a person or animal, and the event was unforeseeable, the owner is liable only for the loss of his ox and, in the case of the killed animal, half the damages to its owner. If the killing was foreseeable, say, for example, where the ox was in the habit of goring, and its owner was aware, the owner would be fully liable.

What’s the principle that underlies these rules? Does it make sense and seem familiar?

(It appears to be nicely in sync with the American tort law principle of reasonable foreseeability, that is, if one can reasonably foresee a risk of damage to another that arises from one’s actions, one must avoid it or be responsible for the consequences of another’s injury that results from it.

First, the owner of an animal has responsibilities as to the behavior of the animal, specifically if the animal causes injury to another animal or person. As we have learned in other contexts, the degree of liability may depend upon the extent of the damage that was foreseeable as well as the measure of the damage per se.

These rules seem eminently fair and just. One must take responsibility for directly or indirectly causing damage to another. Liability depends, in part, upon the degree of foreseeability of damage one might cause another, which corresponds to the caution one should reasonably take to avoid another’s injury. The other party also bears responsibility, largely to avoid damage to himself/herself when, where, and however it may be reasonable to do so.)

LX. Read Exodus 21:33-34. This has a similar fact pattern, but it involves a pit.

Here’s a paraphrase of our US Supreme Court Justice Benjamin Cardozo in the famous Palsgraf case: negligence is conduct that falls below a standard established by law to protect others against unreasonable risks. It involves a foreseeable risk, a threatened danger of injury, and conduct unreasonable in proportion to the danger. If a person could reasonably foresee injury from his action or his conduct is unreasonable in light of what he could anticipate, he would be liable for such injury.

When I studied this case in law school, I didn’t know of the ancient mitzvot that teach the same principle. I wonder if Judge Cardozo, who made it famous and who was Jewish, knew!

LXI-LXIII. Read Exodus 22:5 and Deuteronomy 22:8.

A. There is an inclination to find strict liability, that is, automatic liability, when negligence is so extreme that it leads to an abnormally dangerous condition with an appreciable chance of causing injury and harm to another. In early English law, strict liability was imposed in the case of the escape of fire. Our law, as is the case with these Biblical mitzvot, tends to require a finding of negligence. You can probably see the arguments for both sides.

In terms of the parapet on one’s own roof, why might we be inclined to side with the principle of strict liability if a guest falls and is hurt?

(It’s in one’s own home where, if one invites others to visit, one has a special duty of care. Further, a homeowner tends to know the dangers in one’s own home clearly and the visitor typically doesn’t. Plus, as the example suggests, failing to have a guard rail of sorts on the roof is a superb example of the sort of inherently dangerous condition that, should injury occur, give rise to automatic liability.)

B. We’ve been talking about these matters of tort law on the surface. Do you have any ideas about how we might use these principles to understand our duties to others more broadly and in other circumstances?

(We must show care in how we live with others - what we say, what we do, and how we affect others. Our actions have consequences, and if there is reason to foresee harm, we must show care and do our best to avoid or limit risk.

The Talmud, for example, uses the case of the spreading fire to teach about the spreading nature of unethical behavior, even war or hostility, and the damage a “fire out of control” can cause, the havoc it can wreak. And once it spreads, it is terribly hard to stop. So, great care must be shown in understanding the duty not to start or spread such a fire in the first place.)

LXIV. Read Leviticus 25:14. We come now to several mitzvot that teach us basic principles of justice in the marketplace, that is, how we are to conduct ourselves and resolve disputes when we have conflict in commercial interactions.

We considered Leviticus 25:24 when we talked about how and by what standards we should treat others we encounter in the marketplace. Beyond basic notions of fairness, we learn that, from that verse, regulations followed that, among other things, lead to various means and forms for acquiring property.

Today, our first mitzvah in this group creates the basis for the determination and resolution of rights between the vendor and vendee, especially as to ways in which one party may aggrieve another and what the appropriate consequences should be for it. Essentially, it establishes that right and fair dealings are important not only to the parties involved directly but also to the community as a whole.

As one can tell from the precise words in the verse, there is a special concern here about fraud as well as exorbitant profit. We see these concerns addressed in multiple ways in subsequent interpretations and requirements, and these fundamental notions of fairness and justice play themselves out to this day in our own laws and policies.

LXV-LXVII. Let’s look more closely at the specific guidance we get in terms of the duties of those who care for another’s property. Read Exodus 22:6, 9, and 13.

A. What is the basic idea here?

(Generally speaking, there’s a higher degree of care expected of a bailee if he/she is paid to safeguard property than if not. That stands to reason. Assuming no special or different understanding, part of the consideration for payment is the return duty of, so to speak, professional safeguarding.

So, the unpaid bailee is only liable if there is clear neglect. The paid bailee operates under the higher standard of a paid caretaker, liable except for loss due to unavoidable circumstances. The borrower is in yet a different position. He/she has taken the property typically for an even richer fee, and assumes virtually full liability for any loss to the property (except if it dies or is broken in the normal course of operation). In other words, he/she takes, pays, and agrees to return what’s taken in the shape in which it’s taken.)

B. Does this make sense? If so, why? Further, let’s broaden out from the commercial arena and discuss whether, and if so, how, these principles might guide us more generally in our lives, in our encounters with others.

(Discussion of differing responsibilities based upon the varying obligations we take on in our different roles.)

LXVIII-LXX. Read Leviticus 19:11 (the part about dealing falsely), 13 (not withholding).

A. What are the instructions here? How do you think the sages generally interpret these mitzvot?

(While the language here is nominally about theft or taking things that are not ours, there’s a type of inappropriate holding of property that is a significant concern of these mitzvot. We expect our debts to be paid, and so must we pay ours. While we desire property for ourselves, we are not due that which is not ours. If we have an honest argument about the status of property, we may make our case with another and/or in court. But we’re duty-bound to God and those with whom we do business to be honest about our debts and to pay them fully and on a timely basis.)

B. Again I want us to explore the purpose of these mitzvot more expansively. What does this guidance teach us about other, broader duties we bear to ourselves, our God, and others with whom we live?

(Discussion: e.g., 1) a concern about avoiding other, maybe even subtle, forms of dishonesty, 2) a concern with any sort of violation by inappropriate taking from another, 3) the importance of honest dealing and thoroughgoing integrity. These mitzvot appear in the Holiness Code of Vayikra, so it involves more than rules for court disposition of debts; they are integral to our understanding of what it means to be holy.)

LXXI-LXXII. Read Deuteronomy 17:15. We now come to the first of the mitzvot that guide about the selection of the sovereign as well as the conduct of the sovereign. The core notions of justice that we have been considering undergird this discussion as well.

I want us to think about these mitzvot on multiple levels - how they might apply to the actual kings of Israel so many years ago, how they might apply to leaders in our own day, and finally how they apply to each of us who are indeed sovereigns in many ways of our own lives.

A. A little background first. Our tradition suggests much hostility to the idea of a king. Having kings was the practice of heathen lands. There was resistance to a monarchy early in our story, for example, even apparently from the prophet, Samuel. In the mitzvot, most argue (though Chinuch disagrees) the appointment of a king was not mandatory, and, as we have already discussed and will discuss more, there is great care to limit and discipline the authority of the king.

Yet, the mitzvot do sanction a king, and one gets the sense that there is both a Divine and human purpose for a king (and, in later times perhaps,

some other form of sovereign or extended civil government). Do you see that? If so, what are such purposes?

(We have communal needs for leadership that go beyond the work of priests and judges. We may require a more central authority that can uniquely unite people, provide discipline, and keep a nation stable and growing. Further, this sovereign could play a vital role in defending the nation and conducting war, if needed.

The mitzvot do not delve much into the precise role of the king or details of his functions and how they are to be handled. The best we get is a sense of the purpose of the sovereign and perhaps some notions about the relationship between the sovereign and the people. Crucially, again, we do see more explicitly the importance of the limitations and constraints that are to be placed on the sovereign, and we’ll discuss why in a moment.)

B. Let’s recall our discussion of the requirement that the king is expected to write, keep and observe a Scroll of the Law. Even, and especially, the sovereign must know and live true to the understanding that there is a

greater Sovereign than He, to Whom his knee must bend in duty and service. How might the sovereign act in accordance with these duties?

(By tradition, he was to show humility, grace, and mercy to all, including those of the lowest rank, and concern for his subjects and their needs. He was to speak gently and lead the people tolerantly and patiently as would a shepherd with his flock. Yet, he was also to live true to the mitzvot in ways that require strength, discipline, and duty to the principles of justice and righteousness and adherence to the law. The balance we’ve discussed throughout our exploration between love and mercy on the one hand and justice and righteousness on the other would be one the king is especially bound to maintain in his service to God and nation.)

LXXIII. Read Exodus 22:27. What’s the meaning here?

(This refers both to a judge and a king, according to the sages. The basic idea is that the nation needs leadership, and leadership requires that the people be bound to, and respectful of, the leader. This prohibition is against the emotional and often angry nature of a curse, not speech of a rational sort. Of course, it also assumes that the leader is appointed and serves in a

manner consistent with the requirements of the mitzvot. Then, just as one would not curse God, one should refrain from cursing the leader who serves God and the people.

What should happen if there is a break in that pattern is open to consideration and discussion. Surely, we get a good dose of kings straying from God’s path in Kings as well as subsequently, and to our very day. We’ll leave for another time a discussion of how exactly this mitzvah is applied in the case of a king who does not serve in sync with the mitzvot.)

LXXIV-LXXVI. Read Deuteronomy 17:16-17.

A. What is meant here generally, and specifically?

(These further restraints are intended to curb the inclination of the powerful sovereign to grab excessive power or wealth.

Owning many horses, a sovereign could exert inappropriately great power against the people or others (and be tempted to return to Egypt, literally or figuratively). Taking many wives, he could show a spouse’s heart to none and likely be callous to his people as well. Amassing great wealth, a sovereign would likely have overtaxed the people and/or become haughty over his people, thus evidencing again his greater interest in his own welfare than theirs.)

B. Now that we have reviewed the mitzvot relating to the sovereign, have you gleaned any guidance that might be helpful to you as the sovereign over your life and the decisions you must make within its realm?

(Discussion)

LXXVII-LXXX. Read Deuteronomy 20:11, Deuteronomy 20:2-9, and Deuteronomy 23:13-14.

We conclude our study of the mitzvot related directly to justice issues by looking at guidance concerning the conduct of war. We have already studied certain of these limits in the mitzvot related to the proper treatment of enemies in war. What more do we learn here? Let’s break it down.

(A. First, the king may move forward immediately in a war of necessity or emergency but must get consensus among the leadership to go forward in “non-obligatory” wars. This sounds a little bit like some of the de facto requirements in our own nation. How?

(The authority of the king to go forward “when commanded by God” suggests a need to move quickly on behalf of the safety and welfare of the community. This is one of the key reasons to have a king, as we have discussed. But the requirement of consensus or buy-in helps assure that the commitment to go to war is shared and that the burden is agreed to across the spectrum in a community. Whether the war turns out well or poorly, this sense of shared decision-making is surely healthy and right.)

B. The idea of the priest pulling off the battlefield soldiers who are not ready to fight for the reasons mentioned makes sense. We would only want those strong of heart in battle for purposes of morale and efficacy.

1. It’s fascinating that those who haven’t had the basic experiences of a newly mature life are exempt? Why?

(Perhaps they are entitled to it, as the young should, in life. Or they don’t yet have a full sense of what they’re duty-bound to fight for and thus should experience the making and living out of these basic commitments before going to war. Or they should have an opportunity to fulfill the various mitzvot associated with these key activities of life before facing life and death moments of battle.)

2. Why does the priest play his designated role?

(I suspect soldiers would want and get strength from the fact that a person of God is there to bring God’s nearness and support at this difficult time of challenge, risk, duty, and purpose for the nation and people/warriors of faith.)

C. Why, finally, the rules of cleanliness?

(While wars should be waged vigorously and aggressively for the triumph of our people and way of life in what is inherently a very messy and even ugly enterprise, we are instructed that even our warriors are human beings and ought not act like animals. Further, the war is in service of God and the prayers and comments of the priest in advance of battle are said to God. One doesn’t conduct such activity in the midst of filth.)

D. Going deeper than the surface level of these mitzvot dealing with actual battlefield requirements, what guidance do we get from these directions in the ways we more generally wage the battles of life?

(Discussion)

Conclusion