Five Rashis, Mishpatim: The Wheels of Justice Grind Slowly, But They Grind Very Fine

A project in memory of Baruch Leib HaKohen b. Mordechai Yidel ve-Dobba Chaya

My father, a”h, was fond of the quote I made my title this week, and it’s a propos of what I found in the five Rashis for this week.

What Comes Our Way

21;13 speaks of unintentional killing, and refers to והאלקים אנה לידו, that Hashem brought it his way. In the second comment on those words, Rashi sees this as the source verse for David haMelech’s claim, I Shmuel 24;13, that the משל הקדמוני– which Rashi reads as the proverbs of the Ancient One– had said “from evildoers will proceed evil.”

In the example Rashi then gives, Hashem says that if two people got away with murder, one deliberate and one not, Hashem would maneuver them both to the same inn where the unintentional murderer would fall off a ladder while the deliberate murderer was passing underneath. Each murderer would then get what they already deserved, exile to a city of refuge for one, death for the other.

I like this Rashi because I found a way to use it in Murderer in the Mikdash, my mystery novel set in the time of a third Beit haMikdash in Jerusalem (available in paperback and for Kindle!).  More than that, it is a reminder (we’ll have another one, below) that the Torah doesn’t pretend we are meant to ensure that all outcomes are the right ones. We do our best. If we have witnesses to a crime, we prosecute it. If we don’t, we recognize that Hashem has told us that if we do our part, Hashem will do His, as it were.

The Loophole of Borrowing an Item with Its Owner

Many of us know that halachah recognizes different ways a person’s property can be (legitimately) in another’s possession. Each comes with different levels of responsibility—if I watch your dog as a favor, I have less responsibility than if I rent it from you, for example.

The highest level of responsibility devolves on the borrower, who is using someone else’s property without the owner of the item receiving any compensation. Usually, the borrower is responsible for anything that happens, even if it was completely out of his control. One exception is if the item breaks down through ordinary use; if someone borrows a pen that runs out of ink through normal writing, that’s not the borrower’s problem.

Another exception, 22;14, is אם בעליו עמו, if the owner was with it. As Rashi explains, “with it” doesn’t mean physically in attendance when the item broke. This is a situation known as שאלה בבעלים, where the borrower has also secured the services of the item’s owner, whether as a favor or by hiring him. And, Rashi adds, the owner doesn’t have to be “with him” at the time the item broke, just at the time the person borrowed it.

It’s a strange halachah—because you’ve agreed to work for me for a day, for pay or not, and I also borrow an item, that item falls into the agreement between us and is not subject to my being obligated to repay it should it break (of course I can repay it, and probably should, considering the favor he was doing me).  Why would that be?

To me, a possible answer makes a larger point. In asking a person to work for us, halachah understood that to include all of that person’s possessions. When one person agrees to work for another, for pay or not, that person has agreed to become subject, in this halachic sense, to that other person. Since halachah assumes a person’s objects are really extensions of him or her (that’s an important point I don’t want to slide over—here and elsewhere, halachah sees our possessions as extensions of who we are), the agreement to become “owned” by the other subsumes the first person’s possessions, with no provision for compensation in the case of breakage.

I don’t pretend that wholly explains it. It was a Rashi that jumped out at me both because it’s an issue I’ve thought about several times and also because it captures an element of Rashi’s commentary to Mishpatim that doesn’t seem to me as prominent in other areas of the Torah. Here in particular, in my experience, Rashi gives more of a sense of technical halachic conversations, the ins and outs of how Jews know what to do, not just what we should do.

Double Opportunity for Leniency

23;7 warns us ונקי וצדיק אל תהרג כי לא אצדיק רשע, one who is innocent or righteous don’t kill, for I will not justify the wicked.  Sine it’s odd for the Torah to warn us against killing someone innocent, tradition understands the verse to be telling us that if someone claims to have exculpatory evidence, we have to bring him back the criminal to review the new evidence (even if he was on his way to his death), since he might be נקי, clean or free of the death penalty.

At the same time, if the accused has already been found צדיק, righteous as far as the court’s verdict (not guilty), we are not allowed to kill him either. We know this as a double jeopardy clause, that once a person has been found not guilty, he or she cannot be tried for that crime again. The Torah adds what seems a crucial phrase, in Rashi’s reading. כי לא אצדיק רשע, for I will not justify the wicked, Rashi says, tells us that we don’t need to try this criminal again, because if the damning evidence was accurate, Hashem will take care of it.

Another reminder—and it’s a message that can be hard to absorb, so repeat reminders are not out of place—that Jews were never supposed to think they run the world on their own. Rather, we do the best we can. We work not to kill the innocent, accepting evidence of innocence up until the moment of death. But once we’ve declared someone innocent, we leave it to Hashem to clean up any errors.

Mentioning Other gods

23;13 warns us not to mention the name of other gods, adding that they shouldn’t be mentioned על פיך, literally not to be heard on our lips. Rashi understands the first clause to prohibit setting up either places or days of worshipping other gods for a meeting.  The second clause warns us not to be the cause of those other gods being mentioned by a non-Jew. Rashi’s example is entering a partnership with someone who worships another god; since, if anything goes wrong, that non-Jew will swear by his god that he’s telling the truth, the Jew will have unwittingly been the cause of this god’s name being mentioned.

In between those two comments, Rashi notes that the verse starts by warning us to be careful about everything Hashem told us, reading it as a reminder that worshipping other gods is considered equivalent to violating the whole Torah. Except that this verse makes it more than that—not only can’t we do it, we can’t let it be part of our world (I’ll meet you across the street from that big place of worship, or on that holiday) and we can’t be the cause of others’ invoking it.

We can’t be the reason, in other words, this worship is used in everyday conversation, is made a part of everyday life.

Just You Wait

The end of the parashah gives what Rashi reads as a further narrative of events leading up to the Giving of the Torah. 24;10 mentions that the people who went up with Moshe and Aharon (Nadav, Avihu, and the seventy elders) “saw the God of Israel (ויראו את אלקי ישראל)” and ate and drank.  Their lack of awe, their ability to treat what they were seeing casually, to eat and drink as if nothing special was occurring, rendered them already liable for death, Rashi says.

But that would have marred the festivities at the Giving of the Torah. Instead, Hashem waited for the dedication of the Mishkan to give Nadav and Avihu their due, and punished the rest of the elders later in the Torah, Bamidbar 11;1. There are two points here: first, that when Nadav and Avihu are killed for offering אש זרה, foreign fire, Rashi wouldn’t need to explain that sin as itself worthy of death. Since they’re already deserving of death, all they needed to do later was give Hashem an opening, a trigger, for an already-deserved punishment.

The second piece of that is that we sometimes react to what we see, without remembering that there might be a background we don’t know. If someone violated prohibitions that make them liable for death or karet, excision or early death, and then leaves that behavior without repenting of it, they might die young for what seem to us inexplicable reasons.

Imagine an educated Jew, who knows better, who one Pesach eats chametz, or eats on Yom Kippur, or lives with his or her spouse without observing the laws of niddah—each with no mitigating factors. It’s a one-off transgression, but was done willfully and knowingly. Should Hashem decide to end that person’s life early, those who knew him or her would be shocked; but it would only be the playing out of events from long ago.

I had an elementary school principal who used to write our peccadilloes in his diary, and then append notes to our report cards at the end of each quarter. He would say, “You may forget; I may forget; buy my diary never forgets.” That’s certainly true of Hashem, with the difference that Hashem accepts sincere repentance; barring that, though, people may be getting what they deserve and we wouldn’t know it to look at them.

Justice comes in many forms, but the underlying message of all of those forms is that it ultimately resides with Hashem, in ways we do and do not understand.

About the Author
Rabbi Dr. Gidon Rothstein has served in the community rabbinate and in educational roles at the high school and adult level. He is an author of Jewish fiction and non-fiction, most recently "We're Missing the Point: What's Wrong with the Orthodox Jewish Community and How to Fix It." He lives in Bronx, NY with his wife and three children.
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