  |
 |
|
 |
 |
|||
Parshat Mishpatim 1 Adar 5761, 24 February 2001 |
|||
 |
|||
|
|||
|
|
|
|
|
|||
Parshat Mishpatim 1 Adar 5761, 24 February 2001 |
|||
|
|||
|
|||
     |
|
|
|
Shabbat Shalom: Parshat Mishpatim Exodus 21:1-24:18Efrat, Israel - If two religiously observant Jews are engaged in a disagreement which has financial ramifications, are they permitted to go to a secular court to arbitrate their dispute or must they go to a Religious Court or Bet Din? Is the law different in Israel - which has both a religious as well as a secular court system, but where even the secular court judges are Jewish? And if indeed Jews are religiously ordained to go to religious courts exclusively, why is this the case? After all, secular courts in America are certainly fair and equitable! Our Torah portion this week provides interesting responses to all three questions. It opens with the command : "These are the statutes which you (the Israelites) shall place before them (the religious Judges)." (Exodus 21:1)And the commentator par excellence Rashi (1040-1105) immediately cites the Talmudic limitation (B.T. Gittin 88): "Before the religious judges and not before Gentile judges. And even if you know that regarding a particular case, they (the Gentile judges) would rule in an exactly similar way to the religious judges, you dare not bring a judgement before the secular courts. Israelites who appear before Gentile Judges desecrate the name of G-d and cause idols to be honored and praised" (Rashi, ad loc).According to this passage, it would seem that the primary prohibition is to appear before gentile judges who are likely to dedicate their legal decision to a specific idol or god; it is the religion of the judge rather than the content of the judgement which is paramount. From this perspective, one might legitimately conclude that Israeli secular courts - where the Judges are all Jewish - would not be prohibited, and so concludes Rav Professor Yaakov Bozak (T'khumin 2). Moreover, secular courts in America - where there is a clear separation between religion and state in the judiciary - may very well likewise be permitted. However, the great legalist and philosopher Maimonides would seem to support another opinion. Although he begins his ruling, "Anyone who brings a judgement before Gentile Judges and their Judicial systems. is a wicked individual"- emphasizing the religious or national status of the Judge rather than the character of the judgement - he then concludes, " And it is as though he cursed and blasphemed (G-d), and lifted his hand against the laws of Moses" (Laws of the Sanhedrin 26, 7).Apparently, Maimonides takes umbrage at a religious Jew going outside of the system of Torah law, thereby disparaging the unique assumptions and directions of the just and righteous laws of G-d. In order for us to understand exactly what is unique about the Jewish legal system permit me to give an example of the distinctive axioms of Torah law from another passage in this week's torah portion, the prohibition against charging or accepting interest on a loan.
"If you will lend money to my nation, to the poor person with you, you may not be to him as a creditor, you may not place upon him an interest rate (nesheh); And if you accept from him your friend's cloak as security for the loan you must return the cloak to him before sunset.In addition to the touching poignancy of the latter portion of the passage, I would like to ask four questions, one on each of the four earlier phrases of the commandment. First of all, the prohibition against interest begins, "If you will lend money to my nation." - Although Rashi cites the teaching of Rabbi Yishmael that this is one of the three Biblical instances where the usage of the Hebrew "Im" is not to be understood as being volitional - if - but is rather to be taken as an imperative - "when you lend money to my nation," as you should do, - nevertheless, one might legitimately query why the Bible chooses to use such as ambiguous term for an act of lending which it is clearly G-d's desire that we do! Secondly, the Bible seems repetitious:".to my nation, to the poor person with you." One or the other of these two phrases would have been sufficient to teach the point! Thirdly, "You may not be to him as a creditor," says the Torah. This is interpreted by our Sages to mean that not only is it forbidden to me to remind him of his loan, but I may not cause him embarrassment by his meeting me; if I see him coming - and I think our encounter would shame him - it is incumbent upon me to change direction. Why? After all, he took money from me, didn't he? Why not remind him that he owes me my money? Fourthly and finally, the specific prohibition against interest itself (Hebrew neshekh) seems problematic. The Hebrew word neshekh also means the bite of a snake, which our Sages compare to interest since the serpent initially injects his venom painlessly but it ultimately consumes the entire individual and takes his very life! Maimonides goes so far as to codify: "Anyone who writes a contract with an interest charge is writing and causing witnesses to testify that he denies the Lord G-d of Israel. and is denying the exodus from Egypt" (Laws of Lender and Borrowers, chapter 4:7).What is the logical reason for the prohibition against interest - and why the hyperbolic comparisons? After all, there is no prohibition against charging rent for the use of my house! Why should there be a prohibition against charging rent for the use of my excess funds? The Holy Ohr Hachaim (Rav Chaim Ibn Atar), in a most brilliant illumination, beautifully explains this passage. In an ideal world, he maintains, there ought be no rich and no poor, no lenders and no borrowers; everyone should receive from the Almighty exactly what he requires to live. But, in His infinite wisdom, this is not the manner in which the Lord created the world. He provides certain individuals with excess funds, expecting them to help those who have insufficient funds, appointing them His "cashiers" or "caspo-mats." Hence you must read the verse "If you have (excess) money to lend to my nation, (understand) that what ought have gone to the poor individual is with you" - you were merely given the poor man's money in trust, your extra funds actually belong to him! If you understand this fundamental axiom - that the rich person is actually holding the poor person's money in trust for him as an agent of the Divine - then everything becomes clear. Of course, the lender may not act as a creditor - because he is only giving the poor man what is in actuality his. And of course one dare not charge interest - the money you lent out was never yours in the first place. This is the message of the exodus from Egypt, the seminal historic event which formed and hopefully still informs us as a nation: no individual ought ever be owned by or even indebted to another individual; we are all owned by and must be indebted only to G-d. This fundamental truth is the foundation of our traditional legal system which is uniquely just and equitable. Shabbat Shalom.
|
||
|
||||||
