Parashat Mishpatim, while being the first "collection" of Halakhah (law), expands on the theme of proper judges as introduced in Parashat Yitro (18:21). After presenting a lengthy list of civil and criminal laws, the Torah gives the following "advice" to the judges who are to administer these rules:
"[Distance yourself from a false matter;] do not slay the innocent and the righteous, Ki Lo Atz'dik Rasha' (for I will not exonerate the wicked)." (23:7)
The second half of the verse begs explanation. The Hebrew *ki*, translated here as "for", is intended to express causality. To wit -
"...do not slay the innocent and the righteous; [the reason] for [that is that] I will not exonerate the wicked."
God is commanding us to exercise great care in carrying out capital punishment; the cause given, however, doesn't seem to have anything to do with the effect. How does God's relentless justice "I will not exonerate the wicked" explain the command to not slay the innocent and righteous?
Rashi, following the lead of the Mekhilta (Horovitz pp. 327-8) and the Gemara (BT Sanhedrin 33b) interprets the phrase as follows:
"Do not slay the innocent and the righteous:
How do we know that if one exits the court as a convicted man and someone said 'I can show merit for this man' that we return him to the court? Therefore Scripture teaches: 'Do not slay the innocent'- even though he is not righteous, for he was not found righteous in the first court, nevertheless he is *naqi* (innocent) of capital punishment for we have found merit. And how do we know that if one exits the court as an acquitted man, and someone said 'I can show guilt for this man' that we do NOT return him to the court? Therefore Scripture teaches: 'Do not slay the righteous'-this is the righteous one who was found righteous by the first court.
For I will not exonerate the wicked:
It is not your responsibility to return him; for I will not find him innocent in My court if he escaped your hands as an innocent one - I have many agents to kill him with the death penalty he should have incurred."
Although this interpretation reads well within this half of the verse, its readability becomes strained when read in the context of the entire verse; all the more so when seen as part of the surrounding verses: (Shemot 23:6-9)
Do not pervert the judgment of your poor man in his cause:
Distance yourself from a false matter; do not slay the innocent and the righteous, for I will not exonerate the wicked:
Do not take graft; for graft blinds the eyes of the sighted and perverts the words of the righteous:
Do not oppress the stranger; you know the spirit of the stranger, for you were strangers in the land of Mitzrayim.
Within the context of these verses, Rashi's explanation is difficult on several counts:
According to Rashi, the end of our verse is not an admonishment; it serves as a source of consolation: "Don't be concerned that you have not executed justice properly, for I will do so". The thrust of these verses is clearly exhortative, however, and "consolation" does not fit smoothly within the context.
How does the first part of our verse: "Distance yourself from a false matter" connect with the rest of the verse as read by Rashi?
How can the same man be referred to as a naqi (innocent one) and a rasha' (guilty one) simultaneously? According to Rashi, the naqi "escaped" the grasp of the court on a technicality, but God will catch up with that rasha .
Rashi's interpretation follows the Oral Tradition and grants support for the juridical tradition of favoring acquittal over conviction. It further explains the cause-effect relationship in our verse "Do not slay...for I will not exonerate." It is, however, not the smoothest p'shat (straightforward reading) in the verse; I would like to suggest another approach which will resolve the three problems we found with Rashi's comments.
ACCURATE JUDGMENT CONTINUES "MA'ASEH B'RESHEET"
Evaluating the p'shat will require a brief introduction. We must clarify the theological implications of humans sitting in judgment. Let's turn to the Gemara:
"'The nation stood by Moses from morning until evening'; do you really think that Moshe was sitting in judgment all day? When would he have time for Torah? Rather, this indicates that anyone who renders perfect justice for even one hour is considered a partner with God in Creation. Here it states: from morning until evening and over there (in B'resheet) it states: it was evening and morning one day." (BT Shabbat 10a)
Man, created in the image of God, has the opportunity to become His partner in the ongoing process of creation. The central feature of the Creation is creating order out of chaos - creating light, then dividing light from dark; creating plants, each that will regenerate according to its own species; creating animal life and eventually humans that will reproduce according to their own kind. That phrase is repeated often enough in the first chapter of B'resheet that it becomes the anthem of creation. What is creation? Defining boundaries: light up to here, dark from here on; apples here, oranges there; birds up there, fish down there, animals over here and humans over there. The judge who does his job properly continues the process of making order out of chaos. That which is unlawfully taken is returned, that which is owed is paid. No man, rich or poor, is favored in this regard. The judge sees clearly and objectively, for he is not motivated by the greedy interests of the morally blind, rather by the enlightened self-esteem of the morally conscious.
This position can be explained in two ways.
1) Conventionally, we understand Man's goal to be "Imitatio Dei" - imitating God. This objective is expressed in the Gemara (BT Sotah 14a) " ' After the Lord your God shall you walk:' Is it possible to follow the Divine Presence?...rather emulate His traits..." The judge is, arguably, in the best position to fulfill this command. This view is supported by the verse which first implies mortal judges: "He that spills the blood of man, by man shall his blood be spilt, for in the image of God did He make man." (B'resheet 9:6) This last phrase can be interpreted as justification for capital punishment: The man who judges the murderer was created in God's image and can judge his fellow-even to be killed.
2) There is yet another way of explaining the role of the judge: To coin a phrase from the world of school law: "In locus Deis" - Man sits in judgment not as an emulator of the Divine, rather as His agent (see BT Nedarim 35b in re the Kohanim). Instead of trying to "follow" God, the judge is serving as His earthly arbiter of justice; hence the twofold meaning of Elohim as both "God" and "Court" (e.g. Shemot 21:6). The verses surrounding "Distance yourself from a false matter..." address this aspect of judgeship.
VERBAL AND THEMATIC STRUCTURES - A BRIEF REVIEW
Although the Torah is normally read sequentially, there is a literary phenomenon which occasionally supplants sequential reading. This phenomenon, which we introduced two weeks ago is known as "chiasmus", named after the Greek letter 'Chi' which is shaped like an 'X'.
In a chiastic structure, the extremities focus toward the middle. For example:
"Nations will hear and be afraid, trembling will take hold of the inhabitants of K'na'an" (Shemot 15:14).
The form here is "A B B A", where 'A' is the people ("Nations....inhabitants of K'na'an) and 'B' is the verb ("be afraid, trembling will take hold").
Written sequentially, this verse would is read: "Nations will hear and be afraid, the inhabitants of K'na'an will tremble when they hear."
Chiasmus is a poetic form which is not only a literary adornment, it establishes focus by placing the central theme or cause at the center of a phrase, verse or chapter. We can restructure our verse as follows:
B----->trembling will take hold
A----->inhabitants of K'na'an
There are many examples of verbal chiasma. (See A. Hakohen, "'Al Mivnim Khiastiim beSefer Devarim uMashma'utam" 'Alon Shevut 103 pp. 47-60; for more information on chiastic structure, see our shiur on Parshat B'Shalach from this year.)
A different sort of chiasmus exists in T'nakh. Whereas verbal chiasmus plays phrases or words off of each other, thematic chiasmus places related themes or ideas at the 'A' and 'B' locations respectively. Whereas in an earlier shiur, we utilized this approach to explain six and half chapters of text, it can be applied on a more "local" level.
"Remember that which 'Amalek did to you...wipe out any commemoration of 'Amalek from under the heavens; do not forget" (Devarim 25:17-19) may be structured as follows:
B----->...that which 'Amalek did to you
B----->wipe out any commemoration of 'Amalek from under the heavens (what they did to you and what you do to them connects the two "B" sections)
A----->...do not forget (see Sifre ad loc. for the connection between the two "A" sections)
STRUCTURAL ANALYSIS OF OUR VERSES
Our section is a thematic chiasmus. There are five sections, as follows:
A----->Do not pervert the judgment of your poor man in his cause:
B----->Distance yourself from a false matter; do not slay the innocent and the righteous,
C----->for I will not exonerate the wicked:
B----->Do not take graft; for graft blinds the eyes of the sighted and perverts the words of the righteous:
A----->Do not oppress the stranger; you know the spirit of the stranger, for you were strangers in the land of Mitzrayim.
The 'A' phrases are thematically unified. The Torah is warning the judge against a danger inherent in the powerful position of the magistrate: single-minded concern with the letter of the law. The spirit of the Torah engenders sympathy and compassion for those less fortunate than us. The judge must, first and foremost, be a man of compassion. His zeal for justice must spring from a limitless well of concern for society and its members. The vision of an efficient society which runs smoothly at the expense of its individual's rights is anathema to Torah. The judge must not forget that the poor man is "your poor man" - your responsibility and your brother. Seeing a stranger, the judge might perceive him as a threat to the stability of the society which he protects. "No" says the Torah; "you know the spirit of the stranger" and there but for the grace of God goes the judge himself. (See the Haggadah "and if God had not taken us out of Egypt, we and our children and our grandchildren would still be enslaved to Pharoah") Sympathy, and its handmaiden, compassion, are the products of the awareness of how close we all are to tragedy; how easy it is for any one of us to become the poor man arguing his cause, or the stranger looking for refuge. The sense of shared danger, or at least a potentially common misery, is the single most powerful motivation for sympathy. "How would I feel if I were in that man's situation? How would I want to be treated?" In the Halakhic scheme, the response is always: "That's how I'll treat him."
The 'B' phrases serve as a counterbalance to the compassion mentioned above. The judge, apprised of the demands of compassion placed upon him, might pervert justice due to that selfsame compassion. "The poor man is so much needier," thinks the compassionate judge, "the rich can afford to lose; the poor man is probably innocent; I must show him mercy." The Torah warns of that perversion in the 'B' phrases: "Distance yourself from a false matter...do not take graft." The false matter and the graft referred to here are internal: i.e. the rationalizations with which we blind ourselves (see BT Shavuot 30). We ignore the trespasses of friends much as we turn a blind eye to the righteousness of our enemies; neither fits the image we'd like to maintain. The judge must be wary of this potential in his own psyche. His compassion is the necessary starting point; judging without soul is judging without the image of God. The fairness which must overrule compassion is the crowning feature of the judge. A judge who is fair without feeling the tension of sympathy is not a man; the judge who allows his sympathy to decide the case is not a judge.
"God saw that the world couldn't exist by strict justice alone, so he added compassion..." (Rashi to B'resheet 1:1) We might add that "the judge cannot rule by compassion alone, he must add strict justice..."
THE FULCRUM OF OUR CHIASMUS: GOD'S JUDGMENT
As we explained in our discussion of the Mahn (Parashat B'shalach), the purpose of a chiasmus is to highlight the central feature, which we called the "fulcrum" of the chiasmus. In our case, the 'A' and 'B' phrases serve to mitigate tendencies which judges may have which would pervert the environment of perfect justice. The 'C' phrase is the explanation and foundation of our section:
"...for I will not exonerate the wicked":
The judge, "playing God" as he does, might come to the conclusion that his mandate is expansive. As long as God granted him the right and charged him with the responsibility of judging his fellow, any verdict that he delivers might be acceptable. This is the most common abuse of power; to wit: " I am all-powerful, no one can stop me." At this point, the Torah warns the judge that while he judges others, he is being judged. "I will not exonerate the wicked [judge]." If justice cannot flow from the almost impossible synthesis of fairness and compassion, it will creep from the fear of God. The judge must beware that God's mandate is not a carte blanche for any kind of verdict; beware, lest His agency become perverted and His image tarnished.