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Mishpatim 5767

By: Rav David Milston

Divine Business


“And these are the judgments which you shall set before them.”

(Shemot, 21:1)


The Talmud makes the following halachic statement:


“That is to say - you shall set the laws before Am Yisrael and not before heathens.”[1]


Rashi elaborates: “Even if you know that one of their laws is parallel to a Jewish law, do not enter their courts, for one who brings these issues before their courts desecrates the name of God, and gives importance to idolaters…”


The Shulchan Aruch states: “It is forbidden to go to non-Jewish law courts, even if the issue at hand is to be dealt with in an identical manner to Jewish law, and even if both parties involved prefer to settle their case in a non-Jewish court of law. A person who transgresses this clause, and does take his case to non-Jewish courts, is regarded as wicked, his actions being identified with sacrilege – he has raised his hand against the law of Moshe Rabbeinu!”[2]


And the Rema[3] adds: “It is within the powers of the Beit Din to excommunicate such a person until he retracts from his actions.”


Although there are exceptional instances when one would be allowed to approach the non-Jewish law courts,[4] the overall message is clear. Moreover, we are surprised by the emphatic phrasing. Rabbi Yosef Karo, author of the Shulchan Aruch, rarely describes a transgressor as wicked, sacrilegious, etc. The more scholarly halachists will be quick to point out that this particular law is quoted verbatim from the Rambam  Hilchot Sanhedrin 26:7; nevertheless, it is equally clear that if the Mechaber[5] wrote out the Rambam word for word he obviously held the exact same opinion in this instance.


Whatever the language used, this is an extremely relevant halacha for all of us today. At the time of the Beit HaMikdash, when the Sanhedrin sat in Yerushalayim, such a halacha would have been redundant. But today there are many who consciously choose to distinguish between Jewish custom and business. They consult a Rabbi for the former, while somehow circumventing Jewish law for the latter. There are those who seem to be extremely zealous in their worship of God, but as soon as money enters the picture, a different set of values suddenly appears, values that have no place in Jewish law or Jewish ethics – ‘Business is business.’


Most Jews have the option of living in two worlds: the Jewish, Shabbat, Kashrut, family world, and the non-Jewish financial business world. Interestingly, this was not always the case, even during our long exile.

For example, in Poland there was a remarkable degree of self-government for the Jewish people. In 1551, Sigismund Augustus, the last king of the House of Jagello, issued an edict allowing the Jews of his realm to elect their Chief Rabbi and lawful judges, with the authority to exercise jurisdiction in all manners concerning Jewish law, and answerable only to the Crown.


All individuals were commanded to comply with their decisions and rulings, under threat of extreme penalties. This measure has correctly been described as the Magna Carta of Jewish self-government in Poland, for it set the seal of royal approval on the Jew’s natural urge to govern himself according to his traditional jurisprudence.


It goes without saying that there were some major advantages to this system from the Polish Government’s point of view. The Jewish community as a whole had to collect heavy taxes, which essentially constituted their raison d’etre, and this could not be performed efficiently if the communal authorities did not possess the necessary power to take action against dissenters.


The focus of Polish economic life was in the succession of great fairs held yearly in various centers. Jewish merchants streamed from every corner of the country, from the greatest of scholars and communal leaders to the simplest of traders. In the first half of the 16th Century, it had already become customary for the scholars assembled at the Lublin fair to adjudicate in accordance with Rabbinic law on civil cases.


It was also discovered that these gatherings afforded the best opportunity for apportioning the amount which each Kehilla was to contribute towards the collective burden of taxation. As a matter of course, this convenient arrangement was backed up by the royal authority, and the Va’ad or Council became omnipotent in Polish Jewish life.[6]


Leaving the Va’ad aside, most Jewish communities in the not-too-distant past were independent not only in the areas of Orach Chaim, Yoreh Deah, and Even HaEzer,[7] but also in Choshen Mishpat – classic civil law.


No such autonomy exists in the aftermath of emancipation and in the assimilative atmosphere we live in today. There may be a small number of closed self-contained communities that ‘keep themselves to themselves,’ but they have no external supportive ‘legal’ authority. Their decisions remain binding just as long as the community member involved agrees to be bound by their jurisdiction, or agrees to officially allow them the legal role of arbitrator.


Hence the reality we now face, even in Israel to a degree, is that if one Jew has a financial dispute with his fellow, he cannot be coerced into solving the disagreement through Beit Din. It is also sadly surprising how many Orthodox Jews don’t even see the relevance of Batei Din to the world of business and civil law.


Back to our opening comments. Both the Rambam and the Shulchan Aruch are very clear in their demand that all of our dealings should be directed through religiously affiliated Jewish courts entirely guided by Torah law. Why is this issue so crucial, to the degree that even if the non-Jewish court rules according to Jewish law it is still deemed insufficient?


Judaism is a way of life. It cannot and must not be compartmentalized. The word ‘Halacha,’ a derivative of ‘lalechet’ – to walk, clearly denotes the principle that Jewish law is meant to be by our side at all times. It is an all-encompassing way of life, accompanying us along the sometimes uncertain paths of life and guiding us like a candle in the night.


The role of Torah and Mitzvot is to ‘walk’ us through every daily action, weekly activity, and monthly occurrence. It is our only passport for achieving spiritual elevation and connection with the Almighty while living in a predominantly physical world.


The ‘court case’ between body and soul is an ongoing war. It is a struggle that knows no rest. As long as we exist in this world; as long as we are comprised of two clashing forces called body and soul, the battle will rage, and choice will exist. Our only weapons are Mitzvot. Wherever we are, whatever we do, Halacha must be at our side.


With this in mind, we can understand the severity of compartmentalizing Judaism. Those who wish to place their Judaism in a box, only to be removed thrice daily for Tefilla, or for Birkat HaMazon, are committing a grave error, and are doomed to failure, Heaven forbid. Our relationship with the Almighty cannot be zapped on and off like a TV; it must be a continual 24/7 relationship.


God is with me at Shacharit; he stays with me to learn a halacha after shul, but he also leaves shul with me and accompanies me to work, whatever my profession. If we are to succeed in our objectives in this world then Judaism must guide everything we do. The alternative may perhaps be a valid first stage of Avodat Hashem, but we should not be satisfied with that. Our goal should be a wholly Jewish way of life. 


Perhaps this is why Parashat Mishpatim immediately follows Parashat Yitro. After receiving the Ten Commandments in a major dramatic production at Mount Sinai, we are then brought swiftly back to earth with some chapters dealing mainly with civil law. Hidden in this shift from Heaven to Earth is a wonderful lesson how to lead our lives!


After Sinai, we might have believed that our religious experiences are to be limited to spiritual highs and revelations. Hence we are immediately informed of mundane civil law. The Jewish experience is not represented by thunder and lightning, but by every single human action.  This is also part of the Torah; this is also part of “Na’aseh VeNishma.” The Torah we received at Sinai not only refers to Shabbat but also to damages, retrieving lost articles, and paying honest wages.


Both the Rambam and the Shulchan Aruch understood we must do everything in our power to ensure the unity of Torah. It is only the whole approach that will lead us to holiness. Yitro must be followed by Mishpatim if we are to transform a one-time spiritual experience into an eternal guide to life. 


Despite this clarification, we are still left wondering why we are forbidden to attend non-Jewish law courts if they rule in conjunction with Jewish law. What is the problem? Surely it should not matter where I receive my directive as long as it is rooted in Torah?


Wrong. And here lies our second fundamental principle. It is not only crucial that the Torah engulf our entire existence; it is equally important we comprehend that Torah observance is the ultimate expression of our belief in God.


When we observe mitzvot, we do so because God commanded us to do so. That is our clearest indication our actions are honestly defined as good and true in absolute terms. We do not do things because the halachic requirement ‘makes sense,’ or because it happens to be in tune with our emancipated value system. If we observe mitzvot for any reason other than the service of God, we have somewhat missed the point.


If we were to attend the non-Jewish law court, even when that court uses Jewish law, the religious aspects of our legal behavior would be gradually, if not immediately, lost or at least considerably distorted. We would slowly but surely adhere to halachic guidelines because of our non-Jewish neighbors, and not because our Rabbis directed us to do so. It ‘made sense,’ so why not?


The law would be upheld as a logical human conclusion parallel to the moral norms of western civilization, and not as a sign of our dedication and love of the Almighty. This is one sure way to extinguish the light of the Torah.


My dear reader, our civil law experience, the minutiae of our daily interactions, must also be a religious experience. The Beit Din must be involved where necessary, because we need to be constantly reminded of God’s relevance to everything we do in life. The law must remain aloof but accessible, humanely applicable but Godly in essence. Those very same teachers and scribes who instruct me in heavenly matters must be the very same people who direct me in my business activities and stock trading.


By attending the Beit Din for financial disputes, we create a Beit Knesset for matters concerning man and his fellow. As we enter the Beit Din, we enter the shul that attends to matters of finance. Just as my shul represents holiness and Godliness, so too the Beit Din represents God and His Laws. Such a reality cannot be equaled nor emulated in a non-Jewish court even if its rulings are identical to the Beit Din.


So we begin our parasha with an elementary standard; one that must accompany us wherever we go, whatever we choose to do. We have a laid table – a ‘Shulchan Aruch.’ Everything is set, all is in place. We are invited to take our seats around this table for the duration of our lives; to partake of the meal in accordance with the guidelines of the Host of Hosts.


There are no two options, and there can be no real difference of opinion on this matter. In order to succeed in this world we are to embrace Halacha in all we do. We are to create kedusha in every sphere of our lives, and we are to internalize the fact that civil law is no less holy and no less relevant than those laws pertaining to the direct relationship between Man and his Maker.

[1] Gittin 58b.

[2] Choshen Mishpat 26:1.

[3] Rabbi Moshe Isserles, 1530-1572. Provided an Ashkenazic commentary to the Shulchan Aruch.

[4] Explained by the Shulchan Aruch in this very same chapter.

[5] The author, in this case Rabbi Yosef Karo.

[6] At the beginning, its authority extended throughout Poland and Lithuania. The Grand Duchy had a distinct fiscal administration of its own, and it was thus natural that the Jewish communities broke away in 1623 and formed a separate organization. The Va’ad of Poland ultimately became known as the Va’ad Arba Aratzot  (the Council of the Four Lands) comprising Great Poland, Little Poland, Podolia, and Volhynia.

At its prime, the Va’ad was virtually the Parliament of Polish Jewry, with power nearly as absolute as that of any legislature. Internally, its authority was unquestioned. Besides apportioning taxes, and enforcing royal edicts, it passed laws enforcing moderation of dress and social life. It supervised education and acted as a court of appeal. In fact, since the exile from Eretz Yisrael nowhere else had such an approach to autonomy. See ‘A History of the Jewish People’ by Cecil Roth, Chapter 24 –Poland.

[7] Orach Chaim deals with topics such as daily activities; Shabbat; Chagim; Tefilla; Brachot. Yoreh Deah encompasses subjects such as Shechita; Kashrut; idolatry; interest; Niddah; honoring one’s parents and teachers; Talmud Torah; Tzedaka, and Even HaEzer deals with subjects such as marriage and family, and the laws of divorce.


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