The Mitzvot-Justice 3

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 considerwhat 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 consequencesfordifferent 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
formerand the fourfold forthe 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 bondmenwho 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 inmuch 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 Deuteronomy19:14.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 possibilityis that altering land boundaries is a particularly
surreptitious, hard-to-detect, and thus more dangerous form of stealing.
The Text sometimesfocuses 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 impressionof 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 discussedto 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 seenas 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 robberyis 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’trobbery the more serious offense, and
shouldn’t the penalty forit be more severe?
(One can certainly make the case for that. Robberyentails a direct
confrontation, imposing fear and anxiety, and raising the possibilityof harm
and violence. Our law today imposesgreater consequencesgenerally for
robbery than theft in most circumstances forthese reasons.

Yet, theft is more surreptitious, harder to see and deter, and harder to
prove. We would want to detersuch bad behavior that might otherwise be
easier, more inviting, to do. The commissionof theft also suggests the view
on the part of the perpetrator that since his/her crime isn’t seenby 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 rememberwhat it
means?
(We are forbiddenfrom 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 compensationthat 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 forbiddenfrom kidnapping another personin 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 disposedof,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 seenas 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 seenas if a whole world was destroyed. The Biblical
guidance provides that the murderer be removed from societyand 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 impositionof the death penalty in such
cases. The reason may be fundamentally that we fear if we execute a
personwrongfully 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? Considereach 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 offenseof 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 commissionof 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 decisionto 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 contemporarymeaning 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 ofa 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 Deuteronomy19:3.

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 lesserdegree 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 societyfree 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 consequencesforwrongdoing? 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 responsesto 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 orderto 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.Deuteronomy19:15,22:25-27.Withthese 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 personwho is innocent. And we must exercise great
care to avoid doing so. Our law today doesn’tgo as far as this text does in
requiring two witnesses, though it has becomecustomary 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
exceptionmake us feel generally as to possible “revisionof the law”?)
B. The later verses take us to a broaderprinciple. 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 forbiddenact 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 Deuteronomy25:2-3.
A. We don’t employwhipping as punishment in our societyany longer. But
do you have ideas that might explain any underlying, enduring meaning for
us in these mitzvot?
(There are a variety of offenses forwhich rectificationcan’t be achieved by
payment or compensation, and more serious punishment is unwarranted.
Some offenses indeed wouldn’t be punishable in our societyat 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, completelyfor private
decisionmaking.
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-imposedcorrection.
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 opento 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 beenin 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 severelyendangered.)

LI-LVII.Read Exodus 21:12,20, Leviticus 20:10,14, Deuteronomy22:24,
and Deuteronomy 21:22,23.
A. We’ve discussedthe issues involved in the Biblical sanction of the
death penalty before, specificallyas 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 offensesis not one many
would seriously consider today. But should we or our community seekat
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
offenseand the time and effortit 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 moderneyes, what do we make of the
prohibition of leaving a personpunished 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 powerwith 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.)

The Mitzvot-Justice 3

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