Parashat Mishpatim continues the process begun at Sinai, explicating and evolving the laws that will govern this nascent Israelite society. It begins with the laws that govern the indentured Israelite servants, and then moves on to the laws of damages- beginning with the person who either intentionally or unintenionally causes damage, and then dealing with the damage that is caused indirectly or by the property of people. The parasha then continues into other areas.
On first reading, it seems as if the laws contain a jumble of different areas and contexts with little logical order. Rabbi Elchanan Samet however has a different view: “Our question about the organization of the parasha of damages is based on the assumption that the order should follow the categories of the agents which CAUSE damage. Such a categorization is appropriate from a legal perspective, since one’s level of responsibility for the damage determines whether and how much restitution he much pay. Our questions, however, disappear when we realize that the Torah orders this section based on the categories of those who are DAMAGED, not those who CAUSE damage”.
In other words, the Torah has an organising principle here not just of legal categories, but of societal values. It begins with the value of human and then animal life, moves onto plant life and the sustaining ability of agriculture for society, and only then moves to general property or to money. By using this principle, we are reminded powerfully that all human life and wellbeing, )closely followed by animal life and well being) is de facto more important to sustain and to protect than property or wealth.
On this organising principle, Judaism builds an edifice of understanding and provides a moral compass for us and for all of society. One cannot claim for example that the poor deserve less than the rich, that refugees have fewer rights to security than those comfortably living in the land, or that the rights of animals to life and welfare can be negotiated (or worse) for monetary profit.
Mishpatim has often been described as a foundational text for our society, a text which creates an environment built on laws that are applicable to everyone, that have authority, that addresses a broad variety of human experiences. The view that the organising principle is not only the legal sysem regulating human action but actually the moral imperative to be particularly concerned about supporting the wronged person and getting justice for them is mind blowing. We generally focus on the idea that it is clearly built on earlier codes, such as that of Hammurabi, and examine the differences between the two codes of law, but to change focus and look at how the code is structured to prioritise people’s humanity and well being, the care for all living creatures and for nature BEFORE considering the care for material wealth and possessions is to understand the biblical imperative to care for the world and its inhabitants even at the cost of any accumulation of wealth or other material power.
We cannot of course ignore the fact that the legal code is critical to keeping the moral code properly focused and working. It is law – good law that is made to help people rather than to oppress or constrain people – that keeps society safe. The very word “mishpatim” means “laws”, and it requires people who apply wisdom and compassion to interpret and wield these laws.
I have been thinking a great deal recently about my grandfather, Walter Fritz Louis Rothschild, whose career as a judge faltered and ultimately came to an end with the rise of the Nazis in Germany. We have a newspaper where the following is reported on 21st January 1933 under the heading “A Public Scandal” :
“Offener Brief an den Reichsjustizminister.
Wir berichteten bereits in unsere gestrigen Ausgabe über den öffentlichen Skandal am hiesigen Amtsgericht. Der Führer der SA-Obergruppe 2, Lutze, hat jetzt folgenden offenen Brief an den Reichsjustizminister gerichtet:
Ein Einzelfall, der in der Bevölkerung Hannovers berechtigte Entrüstung und Empörung ausgelöst hat, gibt mir Veranlassung, mich an Sie zu wenden und ein Problem zur Sprache zu bringen, das dringend und umgehend der Bereinigung bedarf.
Der Vorgang ist folgender: Das Amtsgericht Hannover hat es für zweckmäßig befunden, in einer politischen Strafsache, die am Mittwoch, dem 18. Januar 1933 vor dem hiesigen Amtsgericht anstand, in einem Verfahren gegen 2 SA-Männer den jüdischen Amtsgerichtsrat Dr. Rothschild als Vorsitzenden herauszustellen.
Die Vernehmung der Beklagten erfolgte von Seiten des Dr. Rothschilds in überaus provokatorischer und unsachlicher Form.
Der Verteidiger der Angeklagten bezweifelte daraufhin die Unbefangenheit des jüdischen Vorsitzenden und wird von diesem in einer Art und Weise behandelt, die weit über das Maß des Erträglichen und Erlaubten hinausgeht. Das Gericht zieht sich zur Beratung zurück und erklärt dann den Antrag des Verteidigers als gegenstandslos.
Herr Reichsjustizminister! Es dürfte auch Ihnen nicht entgangen sein, daß das deutsche Volk, soweit es die nat.-soz. Weltanschauung vertritt – und das sind rund 40 Prozent der Gesamtbevölkerung Deutschlands – die jüdischen Fesseln abzustreifen sich anschickt.
Wir verbitten es uns, daß man Vollblut- und Halbblutjuden als Richter über deutsche Menschen einsetzt. Wir fordern, daß der verantwortliche Amtsgerichtsdirektor, der für den obengenannten Vorgang die Verantwortung trägt, zur Rechenschaft gezogen wird.
Ich hoffe, daß Sie diesem Appell in letzter Stunde die gebührende Beachtung schenken, ehe es an den Gerichten zu Auftritten kommt, die eine autoritäre Rechtspflege überhaupt in Frage stellen.
Zu Ihrer Orientierung diene Ihnen, daß sich die hannoverschen Gerichte durch Herausstellung jüdischen Justizpersonals besonders hervortun. Ich nenne u.a. :
1. den ersten Staatsanwalt Wolfssohn,
2. die Richterin Alice Rosenfeld,
3. den Amtsgerichtsrat Rothschild,
und empfehle Ihnen, die Genannten schnellstens in der Versenkung verschwinden zu lassen.
Der Führer der SA-Obergruppe II, gez. Lutze, M.d..R.” [i.e. Mitglied des Reichstages.]
“Open letter to the Reich Minister of Justice.
We already reported in yesterday’s issue about the public scandal at the local district court. The leader of SA-Obergruppe 2, Lutze, has now addressed the following open letter to the Reich Minister of Justice:
An individual case which has caused justified indignation and outrage among the people of Hanover has given me cause to address you and to raise a problem which urgently and immediately needs clearing up.
The process is as follows:
The District Court of Hanover has found it expedient to single out the Jewish District Court Councillor Dr. Rothschild as the presiding judge in a political criminal case which was pending before the District Court here on Wednesday, January 18, 1933, in proceedings against 2 SA men.
The questioning of the defendants was carried out by Dr. Rothschild in an extremely provocative and unobjective manner.
The defendants’ defence counsel then doubted the impartiality of the Jewish chairman and was treated by him in a manner that went far beyond what was tolerable and permissible. The court retires for deliberation and then declares the motion of the defence counsel to be without object.
Mr. Minister of Justice! It should not have escaped your notice that the German people, in so far as they represent the National-Socialist worldview – and that is about 40 percent of the total population of Germany – are preparing to throw off the Jewish shackles.
We forbid the use of full-blooded and half-blooded Jews as judges over German people. We demand that the director of the district court, who is responsible for the above-mentioned incident, be brought to justice.
I hope that you will give this appeal the attention it deserves at the last hour, before there are any appearances in the courts that call the authoritarian administration of justice into question at all.
For your orientation, please note that the Hanoverian courts are particularly prominent in singling out Jewish judicial personnel. I mention, among others:
1. the first public prosecutor Wolfssohn,
2. Judge Alice Rosenfeld,
3. the district court judge Rothschild,
and I recommend that you let the aforementioned disappear as quickly as possible.
The leader of SA-Obergruppe II,
signed. Lutze, M.d..R.” [i.e. member of the Reichstag.]
One can only imagine the arrogant confidence of the writers of the letter, who, unhappy that an incident where up to 30 SA (Sturmabteilung – Nazi paramilitary wing “Storm Detachment) men had set upon a man wearing a Reichsbanner badge in his hat (anti fascist/ liberal organisation of the Weimar republic) and beaten him up, were questioned robustly by a Jewish court judge and found to have a case to answer – felt able to demand that Jewish judges be removed from office.
One can only imagine the feelings of that judge – my grandfather- writing his carefully worded and thoughtful 5 page response to the accusation, only to be removed from his role within a week of his rebuttal as the Nazis came to power and removed all Jews from their public roles.
My grandfather died as a result of the physical ill- treatment he received in Dachau shortly after the war. But my grandmother survived and on occasion she would reminisce with me. One day she told me of her overwhelming fear in the early thirties – I think it must have been around the time of this court case – as she tried to persuade her husband to leave the country. He told her “I can’t. If the judges leave then there will be no justice”.
By the time he realised that there would be no judges and no justice it was too late to leave. Countries had closed their borders to Jews, they and extended family were trapped.
Last week I lit a yahrzeit candle for him. This week we are mark the European Holocaust Memorial Day and we repeat the words “never again” and “Zachor – Remember” hopefully and desperately in the knowledge that since the Shoah we have seen people dehumanised because of their ethnicity or religion, we have seen people attempt to erase any memory and any learning from memory.
And this week we read parashat Mishpatim. We read a parasha where a society is created by laws. A parasha structured to remind us that every single human being is of value, every single human being is of equal value, and that value is paramount in how we organise our society.
If only our society followed the structure set out in parashat mishpatim. To value human life, animal life, the natural world. To care for them, to protect them, to nourish and sustain and honour them. And only after that to consider material wealth, profit, gains. If only we had a system where the person damaged was the most important to consider, not the damage to property or wealth.
We are witnessing an assault by government on our codes of justice. We are witnessing legislation whereby if the government does not agree with the judiciary, they will overrule the judgments. We are witnessing long term underfunding of our system which is causing it to break down. We are witnessing a government that thinks the law is not for them to follow. We are living in dangerous times.
And I think of my brave and lonely grandfather saying to my fearful and anxious grandmother. “If the judges leave there will be no justice.”