Bar-Ilan University's Parashat Hashavua Study Center

Parashat Yitro 5766/ Feb. 18, 2006

Lectures on the weekly Torah reading by the faculty of Bar-Ilan University in Ramat Gan, Israel. A project of the Faculty of Jewish Studies, Paul and Helene Shulman Basic Jewish Studies Center, and the Office of the Campus Rabbi. Published on the Internet under the sponsorship of Bar-Ilan University's International Center for Jewish Identity. Prepared for Internet Publication by the Computer Center Staff at Bar-Ilan University. Inquiries and comments to: Dr. Isaac Gottlieb, Department of Bible, gottlii@mail.biu.ac.il

 

 

Jewish Legal Theory

 

Dr. Itamar Wahrhaftig

 

School of Law

 

Parashat Yitro acquaints us with the basic norms of Jewish law as they find expression in the revelation at Mount Sinai.   The Creator revealed Himself to His people and gave them the Torah, which includes laws (hukkim) and rules (mishpatim).   Hukkim are those commandments which are not self-evident to our intellect; mishpatim are those things that “had they not been written, clearly they should have been … idolatry, illicit sexual relations, bloodshed and robbery, and blasphemy.” [1]

We find a similar division in the two tablets of the Covenant:  the first five commandments concern relations between human beings and G-d, paralleling the hukkim, and the last five govern relations with one’s fellow, paralleling the mishpatim.   The commandments concerning one’s fellow are dealt with in greater detail in next week’s reading, parashat Mishpatim, and even though these are rational commandments, nevertheless they too are considered commandments that we are obliged to observe because of their divine origin, as Rashi explained in his commentary on the opening words of Mishpatim, “And these are the rules”:  “ ‘And these’ means, these are to be added to the former; just as the former were given at Sinai, so too these are from Sinai.”   In other words, all the commandments in the Torah originate from the revelation at Sinai, and even the conclusion of the verse, “Love your fellow as yourself:  I am the Lord” (Lev. 19:18) means, “I, the Lord, command you to behave this way.”

If it is a rational imperative that we observe the mishpatim, what is the significance of their divine origin?   In particular, the verse from Psalms, “He did not do so for any other nation; of such rules they know nothing” (Ps. 147:20), raises the question whether other nations do not have any legal theory?   Are their laws in such matters, for example, as The Four Shomerim--watching over something for someone else-- essentially different from the laws of the Torah in the same regard?

Below we shall briefly review several differences between Divine laws and rational imperatives.

A.  Forcefulness of the law:  the origin of our obligation provides greater forcefulness in observing the laws, in line with the principle that “performing a commandment which one is commanded is a greater deed than performing something that one is not explicitly commanded” (Kiddushin 31a, and Tosafot, loc. sit.)   For example, consider philanthropy as practiced by us and as practiced by the gentiles.   Even in the bible the king of Aram attests, “We have heard that the kings of the House of Israel are magnanimous kings” (I Kings 20:31), and Maimonides wrote in Hilkhot Matnot Aniyim (9.3), “Never have we seen or heard of a community of Israel that does not have a charity fund.”  A Jew who obeys what he is commanded is more punctilious in performing the commandments than someone who has not acknowledged his subservience to the kingdom of heaven.

A variation on this theme was expressed by Rabbi A.I. Kook:  “The general principles of law exist among other nations (e.g. the seven Noahide laws); however the details of the laws and regulations were only given to Israel” (see Tehumin 7, p. 275).

B.  Law and morality:  much has been written on the relationship of law and morality.   In modern law these spheres are generally thought to be separate; the judge and the parties to a dispute are subject only to the law and, along with obedience to the law, every citizen is supposed to act in accordance with the dictates of his conscience, i.e. according to the moral considerations that guide him; but that is of no concern to the judge at the bench.  In contrast, law and morality are closely interwoven in the halakhah.   Morality is required of everyone, according to the circumstances of the case, and is subsumed by the commandment, “Do what is right and good in the sight of the Lord” (Deut. 6:18; see Nahmanides on the beginning of Parashat Kedoshim).  Indeed, the commandment to act morally is not generally enforceable, but the judge has authority to act according to moral considerations.   Therefore, sometimes judges insist on leniency with respect to the letter of the law. [2]   Sometimes there are obligations that, while originating in morality, have acquired the force of law, such as the law of neighbors sharing a common border (Bava Metzia 108a), so that in a setting of compromise the judge is entitled to take these principles into consideration as an obligation of divine justice (see Maggid Mishneh, end of Hilkhot Shekhenim). [3]

C. Law and charity:   morality tends to take the weak into consideration, but in the Jewish legal system the law itself protects them.  Contrary to other systems of justice that champion total equality and leave concern for the weak to those moral people outside the legal system, the Torah expresses concern in several regards for the outsider, the orphan and the widow, protects the borrower against invasion of his home, [4] and forbids forcing an impecunious borrower [5] to labor in lieu of repayment of his debt.  As Maimonides said (Hilkhot Sanhedrin 2.7), the role of the judge is to save the exploited from the exploiter.

In particular the Torah protects those who are on the margins of life – before and after.   On the one hand, hurting a fetus is forbidden, and a woman does not have a right to her own body at the expense of the fetus; on the other hand, detaching a terminally ill person from a respirator is forbidden, even though there may be doubts as to the person’s quality of life.  Even the dead are given extreme concern for their honor, beyond the comprehension of any outsider. The Bible undoubtedly served as a source of great inspiration to those legal systems that instituted a policy of welfare for all inhabitants of the land.

D.  Truth in law:  sometimes truth conflicts with the need for stability.   Modern legal theory tends to prefer legal stability and not to reopen legal documents of the past, such as contracts or verdicts, for renewed discussion.   For example, the statute of limitations prescribes a set time after which one cannot file a suit.   In the halakhah there is no such principle of limitation, but the nature of the evidence presented by the plaintiff must be carefully examined in every case. [6]

The same applies to the finality of legal deliberations.  In secular law, after a final judgment has been issued, including appeals, it is extremely difficult to reopen the case on the basis of new evidence.   It is easier to do so according to the halakhah, although restrictions are imposed here as well (see Sahnhedrin 31b).

E.  The purpose of the law:  the general legal system is intended to improve order in the world, to maintain society intact, whereas Jewish law, as part of the halakhah in general, is intended to improve body and soul (see Deut. 5:30, and Maimonides, Guide for the Perplexed, Part III).

In Jewish law, someone who borrows unwittingly is considered a thief, since a person is obliged to take the utmost care not to encroach on his fellow’s assets. [7]   When protection of individual rights are placed in the balance against concern not to hurt one’s fellow, the scales tip in favor of the latter, taking care not to hurt one’s fellow to the extent that it is forbidden to gossip about anyone, even at the expense of limiting freedom of expression.

Maharal in Be’er Hagolah 7 draws a distinction between social codes (the laws of other nations), which are intended to regulate and improve the world, and the Torah, which reflects divine justice and intellect.  For example:  “If a person finds a silver household object … and announces it … and no one else comes to claim it for a year or two, then he appropriates it to himself and uses the object[, this is wrong], even though refraining from doing so in no way improves the world…  Yet this is the law of the Torah…  The finder must simply put it aside until the coming of Elijah.” [8]

F.  Balancing different values:  any legal system is based on values, even if they are not expressed outright.  These values differ from one society to another.  Human dignity, for example, is perceived differently by us than by Western nations.  We have in mind not only moral values, such as those mentioned above, but also seemingly technical rules of law.  For example, take the subject of contractual agreements between parties.   According to the halakhah, a contract is concluded only by an act of acquisition; proposal and acceptance do not suffice, as they do in secular law.  Consent that is not accompanied by action does not suffice to prove utter and complete resolve (see Shulhan Arukh, Hok u-Mishpat 189).  From this point of view, the law is also designed to educate.

We conclude with the example of “a person who enters his neighbor’s field.”  In English law, someone who rescues or improves the property of his fellow is not entitled to the return of his money; for one is not supposed to interfere in the business of one’s fellow, insofar as “a man’s house is his castle.”   Jewish law does not shy away from such intervention, although it is not always permitted from the outset.   Be that as it may, a system that rules out any possibility of restoring one’s investment encourages alienation between people.  The Torah’s approach, which gives partial or full compensation, is more in line with the truth:   if you have benefited, you should pay.  This approach also increases a sense of brotherhood, since a person will not refrain from mending his neighbor’s leaky faucet for fear that in doing so he will suffer financial loss, for he will know that the expenses incurred will be reimbursed (see Bava Kama 101a, and the verses cited there).

In conclusion, the differences between the Jewish legal system and other legal systems are greater than the similarities.  Thus we can understand the words of the prophet Micah (4:5):   “Though all the peoples walk each in the names of its gods, we will walk in the name of the Lord our G-d forever and ever.”

 



[1] See Lev. 18:4 and Rashi, loc. sit.; Yoma 67b; Maimonides, Shemonah Perakim, ch. 6.

[2] Cf. Rema, Hoshen Mishpat 12.

[3] For further elaboration on questions of morality, see the article by my mentor, Rabbi Aaron Lichtenstein, “Ethics and Law in the Jewish Tradition” (Heb.), De’ot 46 (1977); Justice M. Alon, Jewish Law, trans. B. Auerbach, M.J. Sykes (JPS:1994), pp. 160-164, citing an instructive example from the decision in Kitan v. Weiss, 33 (ii) P.D. 785 (1979), on the differences between various legal systems and their relationship towards morality.

[4] Cf. Deut. 24:11:   “You must remain outside, while the man to whom you made the loan brings the pledge out to you.”

[5] Cf. Shulhan Arukh, Hoshen Mishpat 97.15.

[6] See Chief Rabbi Benzion Hai Uzziel, Misphetei Uzziel, Hoshen Mishpat 28, and the article by Rabbi Dr. Ratson Arussi, “The Statute of Limitations in Law and the Halakhah”(Heb.),  Tehumin 21, p. 422.

[7] Rabbi M. Z. Neriah, Mishpatav le-Yisrael, Tehumin 2.

[8] For a similar idea in the sphere of criminal law, see Derashot ha-Ran, sermon 11.