A Brief Note on the Pot and the Kettle

The text of Parsha Mishpatim, the Book of the Covenant, records a series of laws, which on first glance, appear as a disjointed compilation of decrees that cover a myriad of unrelated subjects. Some describe the actions of one man killing another and differentiate the lesser crime of manslaughter from capital murder. There are laws that speak to the quantification and types of damages that were to be awarded consequent to occurrences which we now label as torts.

Many of the civil laws are anachronistic and would have had no immediate application in a nomadic society that had not yet developed a mercantile culture. The prohibition against interest on monies loaned is a good example. Others of the statement recorded are not laws per se, but statements of moral precepts and principles; for example, the axiomatic prohibitions against taking advantage of the less fortunate of society: widows, orphans and the stranger. And others deal with the integrity of the judicial process and the need to ensure this fair disposition of justice. For the most part, the Parsha imparts some fairly advanced notions for an ancient and much unsophisticated society.

Perhaps the most controversial of the statements recorded in the Torah is the iteration of Lex Talionis, the law of retaliation. The Torah expresses it thusly: “an eye for an eye, a tooth for a tooth, hand for hand, foot for a foot, a burn for a burnt, a wound for a wound, and a bruise for a bruise”. This concept was not unique to the laws promulgated in the Torah; however, its interpretation was very unique to Judaism as a nascent social and religious order.

Retributive justice is one of the most misused and misunderstood teachings of the Torah. It has been invoked by critics of Judaism, of which there were, unfortunately much too many for much too long. The stark, and somewhat brutal message of the consequences flowing from being adjudged responsible for another’s injury, has been utilized to paint Jewish Law, and by inference Judaism, as mean and vindictive. This idea fed Shakespeare’s depiction of Shylock; who sought “his pound of flesh”. In point of fact, the dictum of “an eye for an eye” has always been interpreted by Jewish commentators and as requiring monetary compensation equal to the value of the loss, which itself was determined using a fairly sophisticated scheme.

In Tractate Bava Kamma of the Babylonian Talmud, which deals with civil law (what we would now refer to as tortuous behaviour) five categories of compensation are described: actual, physical damages; damages for pain and suffering; the reimbursement for actual medical expenses; payment of lost income; and, damages for humiliation. These concepts are very much alive today and form the Common Law which continues to guide English, Commonwealth and American jurisprudence. Other of the principles taken from the Torah and interpreted in the Mishnah and the Talmud have also been the source for “modern justice”.

A number of the laws, described in Parsha Mishpatim were more appropriate for an agrarian society, and some, of course, dealt with livestock. One example is the ox that gores. “And if an ox gores a man or a woman, that they die, the ox shall be surely stoned, and its flesh shall not be eaten; but the owner of the ox shall be innocent. But if the ox was wont to gore in time past, and warning hath been given to its owner, and he hath not kept it in, but it hath killed a man or a woman; the ox shall be stoned, and its owner also shall be put to death”. This same framework would also apply to any livestock, fowl, or other domesticated animals.

Domesticated animals usually do not exhibit a propensity for violent or vicious behaviour. The Torah assumes that unless they have actually harmed men, they are considered “tam” or innocent. The Talmud expands these provisions, and incidentally dispenses with the capital punishment suggested by the Torah.  Once an ox does gore a person [and not another animal] it is labelled as a “muad”, an animal whose owner was forewarned. If an ox causes damages by goring, the first three times it does so the owner is liable for only half the resulting damage. If, however, the ox gores three times, and the owner was officially notified three times previously that it had gored, the animal is considered forewarned and the owner must pay the higher resulting damage.

The term forewarned may be also used in the broader sense of any type of relief  or damage for which the person responsible must pay full indemnity e.g. damage caused by an animal eating or trampling on another’s property. In essence, it is a strict liability offense, and it does not require any evidence that the owner was negligent or careless in keeping or restraining the animal, only, that they knew that the animal had thrice demonstrated violent behaviour.

In the modern context, the ox that gores has been supplanted by the dog that bites. Under the Common Law, the doctrine of “scienter” would be applicable. It is founded on the owner’s knowledge that the animal had problematic traits. Also, like the law enunciated in the Torah, the owner’s actions, whether he was merely negligent or careless in keeping or restraining the animal, were irrelevant.  Only two things need to be demonstrated: prior dangerous behaviour and knowledge on the part of the owner. Like the Torah, this was a matter of strict liability.

There is a certain irony that Shakespeare’s attempted depiction of Jews and Judaism as callous and cold was so inaccurate and misleading, when, it was in fact the English Crown that was guilty of barbarity cloaked as justice. It was Jewish law that was sophisticated, forward thinking and especially fair and just.

This entry was posted in 2015, Exodus/Sh'mot, Mishpatim. Bookmark the permalink.

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