parasha

Parashat Mishpatim 5778

What Does a Thief Harm?
Rabbi Shmuel Rabinowitz, Rabbi of the Western Wall and Holy Sites

Parshat Mishpatim deals mainly with the legal relationships between people as they pertain to issues such as robbery, damages, watching over someone else’s property, etc.  The punishment given a thief allows us to discern various rankings of punishments that express the severity of the acts.
A person who steals an object from someone else is punished according to the laws of the Torah by paying “kefel”, meaning twice the value of the object or the sum he stole.  If the thief does not have the ability to pay, he can be sold into slavery, limited by the sum he owes.  After this time passes, the thief is set free.

A more serious case is if a person steals an ox or a sheep and kills the stolen animal or sells it to someone else.  In this case, the thief has to pay four or five times the value of the stolen property.  Why is this punishment more severe? Because in an agricultural society, these animals roam free and unguarded.  When a person steals such an animal, he not only harms someone else’s ownership rights, but also does something more serious – he harms the norms of upholding the law; he causes people to lose their financial security which is based on others obeying the law.  Such harm is more severe than damaging ownership rights so it leads to a more serious punishment.
This week, on the 22nd of Shvat, is the yahrzeit of one of the greatest personalities in the Hassidic movement, Rabbi Menachem Mendel of Kotzk, better known as the Kotzker Rebbe (1786 – 1858).  He was an exciting character who held original views.  One of his students related that the rabbi’s wine cup was once stolen.  His assistant, Feivel, was not surprised and said, “How can it not be stolen when everything here is “hefker” (open and accessible) and nothing is safeguarded?” The Rabbi answered, “Hefker? Where is “You shall not steal” which is written in the Torah?”  That same student later said that the words of the Kotzker Rebbe echo in his ears every day to the point of being incapable of understanding how anyone could steal.  This is what the Torah says!  Harming the property of someone else should be something that is inconceivable.
A much more serious case is when someone steals a person and sells him into slavery – be it adult or child.  If someone is caught having done this, he is punished with the most severe punishment: the death penalty.
What did this person do who stole someone else and sold him into slavery? He stole from him his most basic and essential right.  The right to freedom.  Taking away this right to choose and act freely is akin to murder and therefore it is punishable by death.
Another case relating to robbery is the following: A person wakes up at night and discovers a thief in his house.  A violent struggle between the home owner and the thief ensues during which the home owner kills the thief.  Biblical law dictates that in such a case the home owner is not punished for the killing of the thief.
The mitigating factors are that the thief is an immoral person who could harm the home owner, maybe even murder him.  In this case, the rule “if someone comes to kill you, rise up and kill him first” stands. A person is not obligated to preserve the life of someone who wishes to take his.
This is a particularly interesting halacha (Jewish law) because we might have expected the law to actually say: If someone discovers a thief in his house, he must relinquish his money to avoid the development of a violent struggle during which the thief or the home owner could lose his life.  Would it not be reasonable to demand that a person surrender his money and let the thief steal from him in order to save a life?
The answer to this is – no.  The Torah does not demand that a person act beyond what he is emotionally capable of.  Naturally, when a person discovers that someone has wronged him, he struggles to restore justice.  Such a demand – to allow a thief to steal from him – is contrary to human nature.
Furthermore, a person who allows someone else to wrong him does something amoral. Man is expected to rise up against wrongdoing, to struggle, to demand justice.  It is not only a right, but a moral obligation.  And if a violent struggle ensues and the thief is killed – the guilt is not placed on the defendant but on the criminal who brought about his own death.
Right of ownership; the significance of upholding the law; the value of freedom; the obligation to fight wrongdoing – these are the foundations of Jewish law.  This week’s Torah portion turns our attention to these values and calls on us to be fair, to fight for justice, and to sustain moral values.  

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