Parshat Mishpatim - Rabbi Eliezer Shenvald
Parshat Mishpatim deals with monetary laws defining obligations between one person and another. Between the lines we also hear the encompassing world view, the underlying principles of the judicial laws of the Torah.
Every nation and state has its own book of laws and judicial method. In recent years the judicial system is acquiring a central, strategic place in society and the functions of the state, in Israel and in the world. The court system has long been much more than an implement to resolve conflicts and delineate relationships in society, but is in fact an extremely powerful tool that influences the conduct of society.
A legal system presumably also has a judicial strategy. Legal systems are expected to formulate their laws on the basis of some kind of constitution and fundamental laws. And these are generally influenced by the society's culture and world view and are based on human, social and ethical logic, and their purpose is basically to institute "law and order". Laws and statutes are created in an evolutionary process by lawmakers and precedents, and reflect changing attitudes over time.
What is the judicial strategy of the Torah?
Parshat Mishpatim is the next parsha after Yitro, the parsha of Matan Torah. The source for the Jewish law book and judiciary system is "Torah from Heaven". It is not a man-made, based solely on human logic and precedent. The first verse: "And these are the laws". (Shemot 21:1). Rashi says that "AND these are the laws" comes to stress that just as the first ones (the Ten Commandments) are from Sinai, so these are from Sinai (given by G-d).
The parsha opens with "the laws" following "the mitzvot of the altar". From this, the sages learned that "the Sanhedrin has to be in proximity to the altar" (on the Temple Mount).
This proximity has the purpose of creating a permanent strategic tie between G-d's radiating presence in the Mikdash (Temple) and the judiciary system. As opposed to the philosophy of "separation of powers" between the judiciary and the other critical institutions of society, the Torah institutes a substantial connection between the courts and the Mikdash, between holiness and the essence of Jewish law.
Further in the parsha, the Torah denotes petitioning the court (for a monetary judgment) as petitioning G-d (in the Torah, the word Elo-him means G-d, and alternatively it means judges or courts) "And his master brought him before Elo-him." (Shemot 21:6) "If the thief isn't found, then the owner will stand before Elo-him, lest he took from his fellow man." "The words of both of them will come before Elo-him, the one who Elo-him find guilty will pay double to his fellow." (Shemot 22:7) The "Even Ezra" explains this regarding the source of Jewish law, that the judges are "upholding G-d's law in the world." However, the Ramban say that the Torah hints that "G-d will be with them in the judgment, He will absolve and He will convict… since Elo-him is the judge." King David says in Tehillim, " Elo-him is present in the convention of judges ("judges" here calle E-l, which is another connotation for G-d), in the midst of Elo-him He will judge."
The legal procedure in the Beit Din is based on the underlying assumption of active divine involvement in the judicial proceedings. Rabbi Avraham Itzchak Kook Ztz"l points out the fundamental difference in the essence of Jewish law: "Divine laws, because they emanate from the source of the highest truth, their purpose is not only short-term, to settle temporary conflicts, existing in human life, but rather they elevate life and the world in their entirety, from the foundation of the high truth which is infused in them. They indeed radiate G-d's presence, and through their influence uplift man and the world, from the deep abyss to which he fell through sin and wickedness, to the lofty height of the radiance of holiness and illumination and delight of the Holy of Holies."
The workings of society according to Torat Israel, including legal procedure, are a form of being close to G-d. "And in this our holy Torah is distinct from the laws of the nations of the world, in that they (their legal systems) don't deal with this (closeness to G-d) at all, but only with public order…and I add to this that just as our holy Torah is distinct from the laws of the nations in its mitzvot and legal statutes, and their purpose is not at all "law and order", but by through them the G-dly abundance will manifest itself on our nation and will cleave to us, whether this is an evident matter (in its holiness) like sacrifices and all the service in the Mikdash, or whether it is not evident, like other laws whose rationale has not been revealed to us." (Drashot HaRan)
The Jewish Beit Din more resembles a synagogue, where G-d's presence is sought, than a formal court. This explains special statutes in Jewish law like the ones pertaining to "scheming witnesses." And this also explains the conduct required in the Beit Din: "It is a mitzvah for the litigants to stand and not sit, and that they see themselves as standing before G-d, as is written 'before G-d.'" (Midrash Tanhuma Mishpatim) And also regarding the judges themselves: "That when a judge favors a litigant, and perverts the judgment, he pushes away the divine presence. (Tanhuma)" "And it is known that the judiciary system is the "home" of G-d's Seat of Honor, as it is written 'Righteousness and judgment are the home of Your seat. " And one who (properly) upholds judgment upholds the Seat, and one who twists judgment and blemishes it, he blemishes the Seat." (Rabbenu Bechaii)
"And every truthful Beit Din in Israel, the Divine Presence is with them, therefore the judges must sit in fear and trembling and wrapped in a Tallit (or wearing respectable garments), and conduct themselves in a serious manner. And it is forbidden to act lightheartedly or joke or speak of mundane matters in the Beit Din, but only divrei Torah and matters of wisdom." (Rambam, Sanhedrin 3:7) Also: A judge must always see himself as if as sword rests on his neck and Gehinom is open under him and he must be cognizant of who he is judging and before whom he is judging, and who will exact punishment from him if he veers from the path of truth, as is written "Elo-him is present in the convention of judges." (Rambam, Sanhedrin 3:8)
All of these create a different kind of judiciary and social atmosphere, and we long and pray for this: "Renew our judges as they once were, and our advisors as they were originally."