By Rabbi Yehoshua Berman
1 – Choshen Mishpat is Not “Civil Law”
2 – The Singularity of the Gra
3 – A Human Bor
4 – Defining the Mitzvah of Visiting the Beis Ha’Mikdash on Yomtov
5 – Quote of the Week
6 – Featured Story
ואלה המשפטים כא:א, מה הראשונים מסיני אף אלו מסיני רש”י שם
At the beginning of the parsha, Rashi brings that just like the Aseres Ha’Dibros were given at Sinai, so too were all the mitzvos of parshas Mishpatim given at Sinai. Torah is divided, at least in terms of halacha as it applies nowadays, into four segments: Orach Chaim, Yoreh Deiah, Even Ha’Ezer, and Choshen Mishpat. It is fundamental to understand that there is no qualitative difference between the segment of Choshen Mishpat and the other three segments. Within Torah, there is no separation of religious law versus civil law.
Goyim, in fact, do have such a separation because their mitzvah is to use their seichel to enact a system of law that will serve the purpose of tikun ha’medina, ensuring the successful and just functioning of society. But that has no relevance to our Choshen Mishpat at all. This is what Chazal are underscoring by bringing to our attention that the mitzvos of parshas Mishpatim are from Sinai just as much as the Aseres Ha’Dibros are from Sinai. For us, monetary law is just as much religious and carries just as much kedusha as any other mitzvah and halacha. Whether it’s hilchos avodah zarah, hilchos teffilah, hilchos Shabbos, or hilchos nizkei mamon, it’s all the same kedusha of mitzvos Hashem yisbarach.
There are those that wonder, though, how is it that there exists a not-insignificant overlap between numerous, secular, civil laws of the Goyim, and the dinei mamanos of Toraseinu Ha’Kedosha. The Beis Ha’Levi addressed this point, and what he says is very important yesod. Istakel b’Oraysah u’barah almah. As is well known, the Torah is the blueprint of creation. That means that Ha’Kadosh Baruch Hu created the world in accordance with Torah values. This is not only in terms of the large aspects of the universe, such as the sun and the moon and the role that they play in our fulfillment of Torah law, but even in terms of the details of creation as well.
Human intellect and nature is also a function of istakel b’Oraysah u’barah almah. Although Gentile society has worked hard at stripping away its morals and values – to the point that today this may no longer be so true – essentially, all human beings were created in such a way that they are programed with certain, basic sensibilities of morality. That is why, at least in the past, the civil law of the Gentiles would contain a decent amount of overlap with Torah law; because the human intellect and nature was created to conform to the mandate of morality as delineated in the Torah.
The fact that human beings have a natural repulsion for certain aveiros such as murder and theft is becaue we are programed that way. These types of mitzvos are referred to by the Rishonim as mitzvos that the intellect mandates even had we not been commanded. But it is important to understand that the reason why our intellect would mandate those mitzvos is because we were created that way. Theoretically, we could have been programed to have an automatic repulsion for basar b’chalav and shaatnez whereas murder and theft would be chukim to us, things that we observe without understanding the reason why. Because we were created as we are, it is very difficult for us to imagine such a thing, but there is no reason why it could not have been that way.
So, again, the whole reason we find numerous similarities in secular civil law to dinei Choshen Mishpat is that people were created based on the blueprint of Torah. Whatever truly decent and sensible laws the Gentiles managed to promulgate is what leaped out to them, so to speak, from the Torah.
When all is said and done, though, their system of civil law is manmade based on the mandate of their intellect, whereas our dinei mamonos is not a matter of civil law but the same kodesh kadashim of Torah as any other aspect of Torah. Therefore, there is no place to make any comparative study, and the like, between our Choshen Mishpat and their system of civil law.
That is why the Chazal that Rashi brings immediately following the first is the prohibition against bringing one’s monetary disputes to the secular courts. Paranthetically, it is pashut that the courts in Israel are just as much arkaos – secular courts – as the courts in any Gentile country, and this prohibiton applies here just as fully as anywhere else in the world. Chazal emphasize that going to the Gentile secular courts is a validation of their avodah zarah (e.g. the underlying premises of their belief system –ed. note-), even if you happen to know that they rule the same as we do regarding your particular case. Whatever overlap exists is simply what “leaped out” to them because of istakel b’Oraysah u’barah almah, but there is no comparison whatsoever to their secular, legal system of tikun ha’medinah and our Choshen Mishpat which is a full-fledged, inseparable part of the kodesh kadashim of Toras Hashem.
There is a Maharal that helps us understand this idea on a deeper level. He says that a person’s material possessions are part of his shiur komah, it’s part of him. A person has a neshama, a ruach, and a nefesh. Those are the inner parts of his being. Then he has a body, which is the outer part. But it doesn’t stop there. Just like the body has clothing, that are part of what defines and comprises his overall being, so too his home – the place where he finds himself – and his money as well, are all part of his makeup. Yes, his material possessions are the outer edge of him, but they are no less his than his nefesh, ruach, and neshama.
The Torah assigns laws that address every aspect of the human being. There are hilchos deios and chovos ha’levavos that apply to our intellect and emotions, chovos ha’eivarim that apply to the different parts of our body and the actions we must do or not do with them, and there are those mitzvos that apply to the outermost layers of our metzius, including our material possessions. This gives us a deeper insight into the reality that there is no difference, insofar as the inherent kedusha and religious nature is concerned, between Brachos and Bava Metzia.
אחרי רבים להטת כג:ב
The Gemara in Maseches Yevamos 14a delineates a machlokes between Rav and Shmuel regarding whether or not Beis Shammai acted in accordance with their shitah that differed from that of Beis Hillel. The basis for asserting that they did not act upon their shitah is that Beis Hillel’s camp comprised the majority, and Beis Shammai were thus compelled to follow suit. The other way of looking at it is that they did follow their own shitah since the talmidei chachamim of Beis Shammai’s camp were michadedei tfei, possessed of sharper intellectual prowess.
We see from here that there is a basis for paskening in accordance with a minority opinion if that opinion is expressed by the most astute intellect. In his introduction, the Mishnah Berurah notes that the Gra carries singular weight in determining the final halachik conclusion because “he is the light of Yisrael and the peg upon which everything hangs.” This is exactly the type of thing that the Gemara in Yevamos is talking about. Since the Gra was mechudad tfei, that is a reason to pasken like him even over a rov.
(From Reb Avrohom Kurtz)
כי יכרה איש בור…ונפל שמה כא:לג
In general, any object that a person leaves in the public domain is considered like a bor, a dangerous pit, and one is liable for the damage that it may cause. A person himself, lying in the reshus ha’rabim, can also be a bor.
But what if he trips while walking in the street, and winds up causing damage as a result? The halacha is that since he tripped, he is an ahnus, it is considered completely out of his control, and he is exempt from paying. However, he has to get back up immediately. If he just continues lying there without justification, then his liable.
When someone falls and doesn’t pick himself up, it as if he is no longer a mentsch; rather, he turns into a bor. And if he is a bor, then chas v’Shalom he can begin to attract all types of nechashim and akrabim (dangerous creatures). A fall can sometimes be considered an ohnes, but it is critical to pick yourself back up right away.
(From Reb Ephraim Weiss)
שלש פעמים בשנה יראה כל זכורך אל פני האדן ה׳ כג:יז
It is said in the name of the Gra that there are two mitzvos that the fulfillment thereof involves one’s entire body: 1) dwelling in the sukkah on Sukkos, 2) yishuv Eretz Yisrael, dwelling in Eretz Yisrael. But what about the mitzvah of r’iyas panim, visiting the Beis Ha’Mikdash on Yomtov? Isn’t that also a mitzvah that involves the entire body?
The Rambam (Hilchos Chagigah 1:1) says that someone who visits the Beis Ha’Mikdash on the first day of Yomtov without bringing the appropriate, requisite korban – not only has he not fulfilled the positive mitzvah of visiting the Beis Ha’Mikdash on Yomtov, but he has also transgressed the prohibition of “and you shall not be seen before My countenance empty-handed. He has violated the lav of biah reikanis (coming empty-handed). However, adds the Rambam, one is not flogged for violating this lav as its perpetration is passive, not active.
The Turei Even (in Maseches Chagigah) asks on the Rambam two questions: 1) why does the violation of “coming empty-handed” negate the fulfillment of the basic mitzvah of visiting the Beis Ha’Mikdash, 2) why is “coming empty-handed” classified as passive and not active, since, after all, the individual’s act of walking in empty-handed (without the requisite korban) is most certainly an action?!
Reb Chaim Brisker answers these questions by pointing out that, in Sefer Ha’Mitzvos, the Rambam explicitly defines the mitzvah of visiting the Beis Ha’Mikdash on Yomtov as follows: to come to the azarah of the Beis Ha’Mikdash with the appropriate korban. So if you didn’t come with the korban, you didn’t fulfill the mitzvah. Furthermore, the lav of biah reikanis (the prohibition against coming empty-handed) is not defined by the action of walking in without a korban, but the essential fact that you didn’t bring a korban. And the “act” of not bringing a korban is, of course, a passive omission. (It should be noted, though, that there seems to be room to question this assertion based on the fact that, in Toras Kohanim, Chazal draw a comparison between the lav of “coming empty-handed” on Yomtov and the lav of entering the Beis Ha’Mikdash when tamei).
Not that we have this understanding of the mitzvah of visiting the Beis Ha’Mikdash on Yomtov, there is no longer a question on the Gra’s statement that only sukkah and yishuv Eretz Yisrael involve one’s entire body. The question asked on this was, what about the mitzvah of r’iyas panim, visiting the Beis Ha’Mikdash on Yomtov; doesn’t that also involve the entire body? So the answer is that it is not similar to the two mitzvos of sukkah and yishuv Eretz Yisrael, the fulfillment of which just demand the presence of one’s body, and no other elements; whereas the mitzvah of r’iyas panim ba’azarah is not fulfilled merely by entering the Beis Ha’Mikdash on Yomtov, but only with the element of bringing the appropriate korban.
(From the notes of Reb Danny Fast)
Quote of the Week
“Saying pesukei d’zimrah out of order is like dialing a phone number out of order; you have all the right numbers, but you still won’t connect.”
My grandfather told me a maaseh with the Beis Ha’Levi. A certain person was immigrating from his European home-town to the goldeneh medinah of America. Before leaving, he went to take leave of his rav, the Beis Ha’Levi. When he told of his plans, the Beis Ha’Levi asked him to remain with him for a bit. Just to wait. No explanation given. After a number of hours, a young girl came into the Beis Ha’Levi’s home to ask a shailah. She was sent with a chicken in which a needle had been discovered in one of its innards. Is the chicken kosher or is it treif? At that point, the Beis Ha’Levi turned to the man who had been waiting there with him all that time and said, “Look. Here you see this shailoh that was brought to me regarding a needle that was found inside a chicken. But let’s think about this for a minute, exactly how does a needle wind up inside of a chicken’s body? Of course, it’s because chickens peck in the garbage. See to it that you don’t go pecking around in the garbage.”