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Mishpatim 5764-2004

“The Al-mighty’s Concern for the Dignity of the Human Being”

by Rabbi Ephraim Z. Buchwald

As we have previously noted, Parashat Mishpatim essentially establishes the structure of jurisprudence for the Jewish nation. The parasha contains a significant number of the Torah’s 613 mitzvot, a total of 53 to be exact–23 positive and 30 negative commandments.

When compared to other juridical systems, we find that the Jewish legal system has many unique features. In parashat Mishpatim we learn of the scripture’s unusual approach to theft. According to the Torah, a thief must pay double the amount that was stolen (Exodus 22:3). The double indemnity serves the purpose of requiring the thief to suffer the same loss that he wished his neighbor would suffer.

Among the exceptions to the rule of double payment is the law of one who steals a sheep or an ox. The bible tells us (Exodus 21:37), “Kee yig’nov eesh shor oh seh, oo’t’vah’cho oh m’chah’ro, cha’mee’shah vah’kar y’sha’laym tah’chaht hah’shor, v’ar’bah tzon tah’chaht hah’seh.” If a person steals an ox, or a sheep, and slaughters it or sells it, he shall pay five cattle in place of the ox and four sheep in place of the sheep.

While it is true that in this particular case the thief has not only stolen the livestock but has actually slaughtered or sold the animals, it is still not clear why a simple restoration of the value of the animal in addition to a fine of double is not sufficient punishment for the thief. The effect on the owner is exactly the same had the animals not been sold or slaughtered–he is left without his animal!

The Talmud, in Bava Kama 67b and 68a cites a debate between the rabbis regarding the increased penalty for stealing sheep and oxen. Rabbi Akiva asks, “Why does the Torah state that if one slaughtered or sold the animal he must pay four or five times the value? Rabbi Akiva answers, because by slaughtering or selling the animal the thief has become “rooted” in sin.” Raba, however, states that it is because the thief “doubled” his sin, meaning that he not only stole, he also sold or slaughtered the animal.

The author of the Torah Temimah, Rabbi Baruch HaLevi Epstein (1860-1941) notes that there is an interesting practical difference in the law’s application depending upon the views of these two sages. According to Raba, the thief would have to pay the penalties immediately upon slaughtering or selling the animal. According to Rabbi Akiva the thief would have to pay his penalty only once the sin of theft is “rooted” and complete, which occurs only after the owner of the animal gives up any hope that he will ever recover the missing animal.

Clearly the reason for the higher penalties for those who steal sheep or oxen is due to the fact that in an agrarian and agricultural society, the theft of livestock is a very serious crime that can undermine the entire basis of the economy. The need for more severe punishment is therefore obvious.

What is not so obvious is the need for the different penalties–paying five times for the theft of an ox as opposed to four times for the sheep. Rabbi Meir in tractate Bava Kama 79b suggests that the additional punishment levied against the thief of an ox is because the ox is so much more valuable than a sheep, and hence the punishment more severe. It may be that the ox, in ancient times, was perhaps the equivalent of today’s tractor, and the theft of this animal will inevitably result in significant productive labor losses to the farmer.

In offering an additional reason for the difference in penalties, the Talmud in Bava Kama in 79b also cites a remarkable opinion of Rabbi Yochanan ben Zakai who states that the Torah reduced the payment for the theft of a sheep because the thief suffers the embarrassment of having to carry the sheep on his shoulders as he makes his escape, whereas the thief of an ox can ride away on the ox. We see how important the concept of kavod ha’briot--the “dignity of humanity” is in G-d’s eyes. After all, the payment for a sheep is reduced to four, irrespective of whether there were witnesses to the thief’s debasement or not.

There are many laws in the Torah that are related to the issue of G-d’s concern for the “dignity of humanity.” For example, each evening, Jewish money lenders must return a poor person’s night garments that may have been taken as collateral. Respect must be given to elders and to parents. Elders and sages are exempted from the obligation of returning lost articles that require great effort to return or results in the lessening of their dignity. An army camp must have a designated place for taking care of bodily needs.

We readily understand that, in the instance of these previously mentioned examples, one expects the Torah to mandate showing respect, after all we are talking about elders and sages. But who would ever imagine that the Torah would require showing respect to a thief who has so flagrantly broken the moral laws and so willfully violated the Torah? Nevertheless, so great is the concern for the sanctity and the dignity of human life that even the criminal’s dignity is of concern to the Al-mighty.

Once again, we see a fundamental law that emanates from an obscure rule in the scriptures concerning the theft of oxen or sheep. How often we find that, when it comes to Torah, what seems to be most obscure and irrelevant becomes the source of the most glorious laws and concepts of humankind.

May you be blessed.