Chancellor's Parashah Commentary
Parashat Mishpatim 5762
February 9, 2002 27 Shevat 5762
Rabbi Lewis Warshauer JTS rabbinic fellow
The other day, I was mentioning the wide impact of the books of Rabbi Harold Kushner, and the person I was talking to said, "Oh yes When Good Things Happen to Bad People." We laughed, because the actual title of the book is When Bad Things Happen to Good People. It is the suffering of good people — or, at least, innocent people -- that is so troubling and that accounts for the great popularity of books that address this topic. Yet the title in reverse could also be published. The fact that guilty people go unpunished is a continuing source of distress for their victims and for society at large. In a secular system, when criminals go free, justice withers. In a religious system, God's benevolence and protection are diminished.
Last week's Torah reading contains the Ten Commandments, including the one that every contemporary civilized society decrees: You shall not murder (the correct translation is "murder," not "kill.") This is not the last we hear of this matter. Because the Torah specifies murder, it has to define murder, and, in this week's parashah, the Torah goes into some detail about when killing is murder and when it isn't. The key factor, as in most secular legal codes today, is intention. Unlike secular legal codes, the Torah claims for God a role in the process: "He who fatally strikes a man shall be put to death. If he did not do it by design, but it came about by an act of God, I will assign you a place to which he can flee" (Exodus 21:12-13).
The Talmud (Makkot 10b) asks what the Torah means by saying "it came about by an act of God." and, in response, suggests a scenario involving homicide, which is a capital offense, and manslaughter, which is punished by exiling the offender to a city of refuge:
There are two men. One has committed homicide; the other has killed someone unintentionally. But in the case of these two men, there were no witnesses to the victim's death, as the law requires, so the first is not executed and the second is not exiled. Both go free. God arranges that these two men happen to be at the same inn at the same time. The man who committed homicide is sitting under a ladder while the man who committed manslaughter is on the ladder and falls off, killing the man underneath. The one who is killed is thus punished as he should have been, and the one who was going up the ladder is exiled, as he should have been — since all this happens at an inn, where there are witnesses. The outcome of the scenario is called "justice by the hands of heaven."
In a simple reading of the Torah verse, "act of God" refers only to manslaughter. If someone is in the wrong place at the wrong time, and is killed by someone else unintentionally, it is God's doing — not an accident. The Torah does not address the fate of an intentional murderer who, because of a technicality, goes free. It is a case in which earthly justice fails. That is why the concept of heavenly justice, of which the Talmud's scenario is an example, was formulated.
Neither secular nor religious justice systems can provide complete justice. In trying to ensure that the innocent are not punished for crimes they did not commit, it sometimes happens that guilty people are not punished for their crimes. In a secular system, there is no recourse. Criminals go free, and often stay free. A religious system cannot provide direct recourse either. What it can provide is consolation. The Book of Psalms, says, for instance, "The Lord loves the righteous but makes the path of the wicked tortuous" (Psalms 146:8-9). Psalms, however, do not constitute law. Judaism, an integrated system in which legal and religious matters are not separated from each other, is able to build a mechanism of heavenly redress into a situation of earthly error. Whether ladders really fall on guilty people is perhaps beside the point. The issue is that Jewish law does not stay silent in the face of injustice even when it cannot resolve the injustice. Even though Jewish law does not operate fully today, and certainly not in criminal matters, its messages about the way the world should be are still clear and relevant.
Rabbi Lewis Warshauer
Rita Dee and Harold (z"l) Hassenfeld.