“Certainly” Parashat Mishpatim 5778

The Carliner Rebbe has some advice to give on how to get out of jury duty: “Tell the judge the truth. Tell him you’ll make a real good juror because you can spot guilty people just by looking at them. Explain that it has to do with how far apart their eyes are.” You’ll be out of the courtroom in no time.

One of the many laws found in Parashat Mishpatim reads as follows [Shemot 23:7]: “Distance yourself from a false matter; do not kill a person who is innocent or righteous for I will not vindicate a guilty person.” Lest a judge believe that the plaintiff is guilty because his eyes are too close together, the Torah warns him to treat this person fairly. Even though he might look like a criminal, you can’t simply execute him without trial. Did we really need the Torah to tell us this?

Obviously not. The Talmud in Tractate Sanhedrin [33b] learns from this verse that if a person has been found innocent of a capital crime and after the verdict has been given a witness appears bearing testimony against the suspect, we do not allow the witness to testify. If, however, a person has been found guilty of a capital crime and a witness appears bearing testimony that could exonerate the suspect, we return the case to court. Even the perception of innocence is sufficient to save a person’s life. The problem with this law is that it flies in the face of justice. Its implementation ensures that there will be guilty people walking the streets due to a technicality. Doesn’t the Torah tell us [Devarim 16:20] “Justice, justice shall you pursue”? As much as Judaism sanctifies life, the guilty must be punished.

This question can be answered by the second part of the verse – “for I will not vindicate a guilty person”. While an earthly court might mistakenly vindicate a criminal, we should rest assured that this criminal will eventually get his just deserts. There are two methods in which this can transpire. One method is via deferral of punishment to the World to Come. Another method is via Hashem working “behind the scenes”. The Talmud in Tractate Ketubot [30a] teaches that “Even after the Beit HaMikdash was destroyed and the High Court disbanded, capital punishment is still dispensed. [For instance] a person who should have been executed by sekila (stoning) will fall from a roof… a person who should have been executed by serefa (burning) will die in a fire or will be bit by a poisonous snake…” The Talmud is teaching that what must happen eventually will happen, such that even if a murderer gets off on a technicality, he will still one day be held accountable to Hashem. The Netziv of Volozhn puts a twist on this explanation. He asserts that when Hashem says “I will not vindicate a guilty person”, it means that He would never allow a court to free a person who had actually committed a crime. If a court does free this person, it means that Hashem wanted them to free him because he was actually not guilty. In other words, an earthly court will always come to the correct conclusion[1].

The Midrash proposes another way of interpreting the commandment “not to kill the innocent”. It brings an example of Person A holding a knife chasing Person B. The two run into a room and Person A exits, holding a bloody knife in his hand. Inside the room we find Person B dead of a stab wound. It is clear that Person A is a murderer and yet a court cannot convict him because the evidence is only circumstantial: at the end of the day, no one witnessed the actual murder and there exists a minute chance that Person B actually committed suicide. The Rambam [Sefer HaMitzvot LT 290] explains this law by using a “slippery slope” argument: There is an infinite continuum of uncertainty. Some things, while mathematically uncertain, are for all intents and purposes, certain. For instance, most military systems are designed to have less than a one in a billion chance of killing a human as a result of malfunction[2]. Safety is pretty much guaranteed. On the other end of the spectrum, a flipped coin has a fifty percent chance of landing on heads. There is nothing less certain than the flip of a coin. The Rambam asserts that the minute we allow for even the smallest amount of uncertainty, we must allow for all amounts of uncertainty: “The category of ‘possible’ is very broad and if the Torah allowed the High Court to punish when the offense was very probable and almost definite then they would [eventually] carry out punishment in cases which were less and less probable, until people would be executed based on flimsy estimation and the judges’ imagination.” This rule is known today as “Blackstone’s Formulation”, which states that “It is better that ten guilty persons escape than that one innocent suffer”. It must be noted that circumstantial evidence can be accepted in monetary cases under certain circumstances. Similarly, many laws related to kashrut, such as drinking milk without having to ascertain that the cow who gave the milk is not a treifa[3], and the extent to which we must check produce for bugs, are based on statistics. Only in capital cases is one hundred percent certainty always required.

This is Israel’s fifth consecutive year of drought and while we have partially solved our water problem via desalination, we still need our rain. Until last week, we had been saying special prayers for rain: “Anenu Boreh Olam – Answer us, Creator of the world, with your trait of compassion… Protect and save this year from all bad things… Bless us with rains of blessing and generosity…” Over the last two weeks, thank G-d, we finally got some meaningful rainfall, and having surpassed our yearly average we have stopped saying the prayer for rain. It is slightly odd that we pray for rain but we don’t pray for the suspension of gravity, which could come in quite handy when we are under rocket fire. Both rain and gravity operate according to well-defined physical laws. Why do we believe that our prayers can change the laws of physics only when it comes to rain?

I suggest it has to do with the weather being a chaotic system[4]. Chaotic systems are exquisitely sensitive to initial conditions and small changes can give rise to great effects. This has been described as the “Butterfly Effect” – the flapping of a butterfly’s wings in China can cause a monsoon in Brazil. For long-term weather prediction, one must know the humidity, the temperature, the wind velocity and the barometric pressure at every point in the world with infinite accuracy. Obviously this is physically impossible[5].  Only Hashem, Who has infinite knowledge, can truly know what the weather will bring. Why do we pray for rain? We pray because our lack of knowledge is also our source of hope. We ask Hashem to find rain in the infinitesimal places that we cannot peer into even with our most powerful microscopes. If the future is etched in stone, then our prayer is worthless[6]. Gravity, on the other hand, is not a chaotic system and so it’s a near certainty that tomorrow’s force of gravity will be the same as today: , where G= 6.754×10⁻¹¹.

We live in a world of confusion. Hashem has commanded us to conquer our world. We must use all of the mathematical and logical tools at our disposal to try and poke through the uncertainty in order to live a life of godliness. But we are mortal men, not gods. While we live with uncertainty, we do not rule over it. So in capital cases we are commanded to retreat, to internalize that in our limited existence we will simply never know for sure. When human lives are at stake, we are commanded to defer to Hashem. We do this with the full belief that He can – and does – always get it right.

ere’s

Shabbat Shalom,

Ari Sacher, Moreshet, 5778

Please daven for a Refu’a Shelema for Yechiel ben Shprintza and Tzvi ben Freida.

[1] The Netziv brings proof for his hypothesis from the verse in Tehillim [82:1] “in the midst of the judges He will judge”, meaning that Hashem is always looking over their shoulders.

[2] Wouldn’t want that tactical missile to hurt anybody.

[3] An animal that will die within one year, rendering the milk non-Kosher

[4] Chaotic systems appear every so often in these shiurim, see, for example, our shiur for Korach 5766. Each time I mention chaos I try to add another small layer to the edifice.

[5] This is due to Heisenberg’s Uncertainty Principle and is beyond the scope of this shiur.

[6] Unless, of course, Hashem decides to abrogate the laws of physics as He did at the Red Sea. The Rambam posits that Hashem prefers not to perform this type of miracles.