Law

ESSAY: Law
Crime, conflict and consensus in the social and spiritual history of Jewish civil law

INSIGHTS: Chassidic Anatomy
The function of the outer ear

And these are the laws which you shall set before them: If you purchase a Hebrew servant... If a man strikes his fellow with a stone or with his fist... If a person’s ox gores the ox of his fellow... If a person gives his friend money or utensils to watch over and they are stolen from the [guardian’s] home...

Exodus 21-22

The commandments of the Torah are commonly divided into two categories: laws that govern the relationship “between man and G-d,” and those that legislate the proper conduct “between man and his fellow.” Even the “Ten Commandments,” which are an encapsulation of the entire Torah, were inscribed on two separate tablets: one containing commandments such as “I am G-d your G-d” and “Remember the day of Shabbat,” and the other proclaiming laws like “Do not kill” and “Do not steal.”

But the two categories are deeply interrelated. The Zohar states that the divine instruction, “I am G-d your G-d... You shall have no other gods before Me,” is the essence of all 613 commandments and prohibitions of the Torah.[1] On the other hand, the Talmud tells the famous story of the great sage Hillel, who told a man who asked to be taught the entire Torah while standing on one foot: “What is hateful to yourself, do not do to your fellow. This is the entire Torah—the rest is commentary.”[2]

Ultimately, there is no essential difference between the Torah’s “civil” laws and its so-called “religious” laws. A crime against man is also a crime against G-d, and a crime against G-d is a crime against all of His creations. A kindness to a fellow human being is a kindness to Him who created us all and desires that we live in peace and harmony with each other; and a positive “personal” relationship with G-d has a positive effect on His relationship with creation as a whole and with each and every citizen of His world.[3]

Chassidic teaching takes this a step further, showing how the deeper significance of a mitzvah extends beyond its basic classification to the other category as well: a mitzvah whose most immediate application is of a “ritualistic” nature is also an instruction in how to behave toward a fellow man; and a mitzvah whose literal meaning places it squarely within the Torah’s “civil code” also addresses the internal world of the human soul and its mission and purpose in life.

Many of the Torah’s civil laws are enumerated in the section of Mishpatim (Exodus 21-24), which immediately follows the Torah’s description of the revelation at Mount Sinai. This, say our sages, is to emphasize that “Just as the previous ones are from Sinai, these, too, are from Sinai”[4]; that in Torah, even the most utilitarian social law is a “mitzvah”—a divine commandment, a revelation of divine will.

The Talmud, which analyzes the biblical verses and deduces the laws encoded within them, devotes its largest tractate, Nezikin, to the civil laws of Mishpatim. Because of its size, Nezikin is subdivided into three parts, each of which has come to be regarded as a tractate in its own right: Bava Kamma (“First Gate”), Bava Metzia (“Middle Gate”), and Bava Batra (“Final Gate”).

Each of the three “Gates” deals with a different category of civil law; together, they describe humanity’s progress toward a more peaceful and harmonious existence. The same is true of the spiritual dimension of these legal tracts: each “Gate” represents a different stage in our inner development, as our soul matures toward the ultimate realization of its potential.

A reading of the opening lines of each of the “Gates” will serve to illustrate the types of cases they each deal with. Bava Kamma, the “First Gate,” begins:

There are four primary classes of damages: the ox, the pit, man and fire.

The “First Gate” goes on to discuss a person’s responsibility for these four categories of damages:

1) damages inflicted by one’s personal property (e.g., a person’s ox goring his neighbor’s ox);

2) by hazards placed on public property (e.g., digging a hole in middle of the street);

3) damage inflicted directly by the person himself;

4) failure to prevent damages arising from potentially dangerous actions (e.g., a person starts a fire on his own property which spreads to that of his neighbors).

In addition to defining the four categories of damages and the numerous sub-categories and particular laws they each contain, Bava Kamma also legislates the reparations and penalties for theft and robbery. In other words, the “First Gate” of Torah’s civil law deals primarily with criminal, even violent, attacks on a fellow’s property and person, addressing the most crass form of disharmony among men.

The laws discussed in Bava Metzia, the “Middle Gate,” include: laws pertaining to the return of lost objects; disputes arising out of loans, sales, and employment; and the responsibilities of the “Four Guardians”— the paid and unpaid bailees, the borrower and the renter—for the objects entrusted to their care.

Like the first Bava, the “Middle Gate” also deals with disputes between people. But these are, for the most part, more benign conflicts, arising out of honest disagreement rather than malicious or blatantly irresponsible behavior. The first law discussed in this tractate is a case in point:

Two people are holding onto a garment. One says, “I found it,” and the other says, “I found it”...

To be sure, the laws of Bava Metzia hardly reflect the ideal in interhuman relations. The court’s verdict inevitably satisfies but one, and at times neither, of the claimants. But unlike the cases discussed in the “First Gate,” there are no overtly anti-civil acts involved. Rather, in the course of their normal, day-to-day dealings, two people find themselves in disagreement with each other. In many cases, each party honestly believes himself to be in the right.

On the other hand, the “Final Gate,” Bava Batra, includes an entirely different genre of civil law: laws which come not to settle disputes but to lay the groundwork for a socially just and harmonious existence between man and his fellow. This tractate discusses the laws outlining property rights, neighbor relations and responsibilities, partnership, commerce, inheritance and charity. A case in point is Bava Batra's first scenario:

Partners [in a courtyard] who wish to divide, should build a wall in the middle... In everything they follow the local custom. [When they build] with uncut stones, one gives three handbreadths and the other gives three handbreadths [of space for the wall]... With bricks, one gives one-and-one-half handbreadths and the other gives one-and-one-half handbreadths... Thus... the area and the stones belong equally to both.

This law is typical of the laws that form the backbone of the “Final Gate”: its function might be to define and divide, but this is a division desired by both parties and beneficial to them both. Indeed, the very wall which divides them becomes a joint undertaking, linking them and attesting to their mutual desire to live as neighbors who respect each other’s rights and privileges.

On the cosmic-historical level, the three gates of Nezikin can be seen as three phases in the social development of man, as a barometer of Torah law’s progressive influence upon society.

In the “First Gate,” we encounter human society in a base and barbaric state: “law” is an institution whose function is to deal with criminal and violent behavior among its members. In the “Second Gate,” we progress from criminal to non-malicious conflict. Finally, the “Final Gate” describes a strife-free society—a society in which the role of the law is not to deal with dispute but to establish guidelines for a greater cooperation and a deeper unity in the community of man.

The three Bavot tell the story of history itself: the story of mankind’s progress toward the perfect and harmonious world of Moshiach. As humanity learns to disarm and unite, beating the swords of war machinery into the plowshares of aid to the needy, we near the day when the “Final Section” of Torah’s civil and civilizing law will forever abolish conflict and animosity from the human experience.

As discussed above, the social mitzvot of the Torah have their counterpart in the life of the soul. Thus, the “three gates” of progress from barbarism to harmonious coexistence on the social level also describe three corresponding stages in our spiritual development and our quest for connection with G-d.

In the “First Gate,” we contend with the negative forces that actively undermine our spiritual integrity. These fall under four general categories, corresponding to the “four primary classes of damages”: our animal lusts and desires (“the ox”); our propensity for anger and other violent emotions (“fire”); the destructive effect of “passive” vices such as sloth and inertia (“the pit”); and our misleadingly sophisticated vices, which are all the more harmful because they exploit our elevated, distinctly human talents (“man”) to spiritually destructive ends.[5]

The “Middle Gate” describes a stage in our spiritual development at which these overtly destructive forces have been overcome and our internal conflicts are of a more subtle and “civilized” nature. The spiritual also includes the laws of “Four Guardians”: the unpaid guardian, the paid guardian Bava Metzia deals with issues such as “finding lost objects,” and the responsibilities and privileges of the “Four Guardians.”

The Talmud defines a “fool” (shoteh—a legal term referring to someone who lacks the intelligence and understanding to be held responsible for his actions) as “one who loses everything that is given to him.”[6] The Hebrew words for “everything that”—kol mah—also translate as “all the what”; “what” (mah) is a Kabbalistic term for the soul’s capacity for receptiveness and self-abnegation. On the spiritual level, a “fool” is one who loses all the mah that has been given him—a person whose self-absorption prevents him from being receptive to all that is greater and loftier than his present comprehension and experience.

This is the “between man and G-d” significance of the laws that deal with the recovery of lost objects. Even after we have cleansed our souls of the blatantly destructive traits enumerated in the “First Gate,” we must labor to recover our lost mah and resolve the internal dissonance that occurs when our ego obstructs our spiritual development.

Bava Metzia, the borrower and the renter. These laws define the degree of responsibility that each guardian has toward the object entrusted to his care as it relates to the amount of benefit he derives from his guardianship. As applied to our internal lives, the laws of the “Four Guardians” describe four types of spiritual personalities who vary in the degree of “reward” they expect in return for their toil to improve G-d’s world and the corresponding degree of “responsibility” they must assume for the hazards of life.[7]

Our sages tell us that “In the manner in which man measures himself, so is it meted out to him.”[8] In other words, G-d leaves it to us to define our vision of life and our relationship with Him, and then relates to us accordingly. Indeed, there are several ways in which a person may perceive the labor of life.

One might see himself as a slave of an autocratic master. I didn’t ask to be born, goes this line of thinking, nor was I consulted when the laws of life were formulated. All this was imposed on me. As the Talmud puts it, “Against your will you are born, and against your will you die.”[9] My master is all-powerful, so I had best carry out His commands.

Or one might adopt the more involved attitude of the employee. I have a job to do, says this approach, and I’ll give it my best effort. And has G-d not promised to reward my toil? A vision of life as a job is expressed by the Talmudic sage Rabbi Tarfon in the second chapter of Ethics of the Fathers: “The day is short, the work is much, the workers are lazy, the reward is great and the Master is pressing... It is not incumbent upon you to finish the task, but neither are you free to absolve yourself from it. If you have learned much Torah, you will be greatly rewarded, and your Employer is trustworthy to pay you the reward of your labors.”[10]

Finally, one can experience life as a partnership with G-d. True, we are “slaves” in the sense that we acknowledge G-d’s absolute mastery over us, and we are “employees” in the sense that He has defined our life’s assignment and has promised to reward our labor. But we have been granted the ability to elevate the toil of life into a partnership with our Creator. In the words of our sages, “A judge who judges a case with complete truthfulness... becomes a partner with G-d in creation”[11]; “One who prays on the eve of Shabbat and recites Vayechulu[12] ... becomes a partner with G-d in creation.”[13]

As G-d’s partners, we develop our self and world in accordance with the divine will not only because we must, nor merely to “do our job,” but as an intensely personal enterprise. Life becomes our joint venture with G-d—a venture conceived and enabled by Him but fueled by our own initiative and ambition.

The spiritual version of the “Final Gate” describes this venture. As in any joint enterprise, there is need for “walls” that delineate the terms of the partnership; the domain of each partner must be defined, as well as his rights and responsibilities. These walls are of several types: some are wholly divine institutions (“uncut stones”); others are products of man’s development of divinely provided resources (“brick”).[14]

But while these walls divide and define, they are not divisive walls. There are no saboteurs in this relationship (as in the “First Gate”), nor even benign conflict (as in the more spiritually mature “Second Gate”). Rather, they are uniting walls, jointly constructed walls that galvanize our relationship with G-d and impart meaning and fulfillment to our lives.

Based on the Rebbe’s works, including a journal entry (undated)[15] and an address delivered on Shabbat Mishpatim 5752 (1992)[16]

Chassidic Anatomy

Chassidim ask: Why were the ears created in the form of two handles attached to the sides of the head?

So that even if a person has sunk in mud up to his neck, he could by grabbed by the ears and yanked out.