CHAMISHOH MI YODEI'A - FIVE QUESTIONS ON THE WEEKLY SEDRAH - PARSHAS MISHPOTIM 5772 - BS"D
1) Ch. 21, v. 1: "V'ei'leh hamishpotim" - And these are the rulings - The Holy Zohar writes that the laws of monetary matters embody the secrets of reincarnation of souls, "sode gilgul." What is the connection?
2) Ch. 21, v. 6: "V'rotza adonov es ozno" - And his master shall pierce his ear - Rashi explains that the ear that heard on Har Sinai that one should not steal, and in spite of this the person stole, deserves to be pierced. If so, why not have it pierced when the person is sold into servitude rather than 7 years later?
3) Ch. 21, v. 11: "V'im shlosh ei'leh lo yaa'seh loh" - And if he does not do any of these three things for her - Rashi says that this means that he neither took her for himself, nor for his son, nor did he accept a pro-rated reduced redemption price for her emancipation. How does Rashi know that this does not refer to the three responsibilities enumerated in the previous verse after she was taken as a wife?
4) Ch. 21, v. 19: "V'nikoh hama'keh" - And the assailant is cleared - The previous verse tells us that if the injured person dies, his assailant is put to death. Our verse says that if the injured person is on the mend the assailant is cleared. This cannot mean that he is cleared of the death penalty, as there is no need to tell us this, as we would know on our own that if murder was not committed there is no death penalty. Rather, "he is cleared" teaches us that the assailant is incarcerated and we wait to see what happens to the injured person (Rashi, Mechilta). When he is healed the assailant is "cleared," means he is let out of jail. Is jailing him just a way of assuring that he will not run away, or is it in and of itself a punishment?
5) Ch. 21, v. 26: "V'chi ya'keh ish es ein avdo …… v'shichasoh lachofshi y'shalchenu" - And if a man will hit the eye of his servant …… and he will destroy it he should send him free - Does this law apply if the servant was truly responsible for being hit, bringing it upon himself?
The Torah gives us specific guidelines for judging. When properly applied, judges will reach the conclusion that is in accordance with Hashem's will. However, the accuracy of the ruling is not foolproof. In spite of the judges being given leeway to not rule purely by technical jurisprudence, for example, if the witnesses testimony passes the judges' grueling interrogation, they still may rule against the witnesses' testimony if they detect falsehood, even though it is not overt, "din m'ru'meh," thus averting a miscarriage of justice, nevertheless, there are times when the witnesses can outwit the judges. This can happen when they have rehearsed their testimony very well, in particular if they are somewhat scholarly, they will know exactly what to say and what to avoid. Thus there is the possibility that a person who knows that he never lent the plaintiff money can be judged to pay back a loan that never took place.
It would thus seem that the Torah's system has flaws if a judgment falls through the cracks. This is the intention of the Holy Zohar. If one knows that he is in fact innocent and in spite of this a court of competent judges has ruled against him, he must conclude that in an earlier visit to this earth he owed someone money and never paid it back. Upon his return visit he is given the "opportunity" to pay it back to the reincarnation of the other person's soul or to his heir.
The Kli Yokor answers that we have a rule that one does not receive corporeal punishment and also having to pay for one act, "ein lo'keh umsha'leim" (gemara B.M. 91a). When he was sold the money is used to pay back for his theft, so we do not pierce his ear. When the 7 years of slavery are complete and he shows that he is happy with his situation of being a slave, and thus does not consider it a punishment, we are left with the single punishment of piercing his ear.
The answer is that our verse ends with "v'yotzoh chinom ein ko'sef," she is to be sent free with no payment required. "Chinom" also indicates that she just goes free with no writ required. If she was married either to the master or to his son, it is obvious that she would require a writ of divorce, a "get." (Daas Z'keinim)
Rabbi Shimon Diskin writes that incarceration is not to be viewed as a medium that allows us to carry out the death penalty if it becomes necessary, but rather, a penalty administered by the court, just like lashes or another corporeal punishment. He cites the Ram"o on Ch.M. #339:4 who says that we do not incarcerate a person on Shabbos even if we realistically fear that he will escape. If this is a court imposed punishment this makes sense, as the court does not administer punishments on Shabbos. If this is just a medium to guarantee that he will not run away, then it would be permitted to lock him up even on Shabbos. Another proof is from the GR"A's commentary on Toras Kohanim parshas Emor #12 on the words "va'yanichuhu bamishmor" (Vayikroh 24:12). They put the blasphemer in confinement, but not the Shabbos desecrator. The GR"A explains that this is because we do not judge two people for the same punishment in one day. Again, we clearly see that incarceration is a court imposed punishment, and not just a practical strategy to insure his not running away.
The Rashb"o raises this question. The GR"A says that the answer to this question can be extrapolated from the gemara Brochos 5a. The gemara says that pain cleanses a persons sins. If the destruction of just one organ of a slave, a tooth or an eye, is sufficient to have a slave set free, surely pain, which wracks the whole body frees one from his sins. It is obvious that Hashem sends pain to a person as a response to his sinning, thus the person is the cause of his pain. Nevertheless, we say that pain should surely cleanse one's sins if a tooth or an eye bring freedom. If we say that this is only so when the slave is not at fault the reasoning is faulty, because a slave does not go free when he is at fault, so pain brought on as a result of a persons sinning should also not cleanse.
This is the intention of the verse in Iyov 31:13,14, "Im emas mishpat avdi vaamosi, U'moh e'esehki yokum Keil," - If I will despise the law of my slave and maidservant, And what will I do when Hashem will stand up in judgment. If I limit the ruling of releasing a slave to apply only when he is not at fault, then what will I do when I am judges, since the pains I have experienced will not reduce my sins, as I was at fault for their coming upon me in the first place.
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