Parashat Mishpatim

Iyunim - Weekly insights on the Parasha with commentaries by Nehama Leibovitz, za"l

If thou meet thine enemy's ox or his ass going astray, Thou shalt surely bring it back to him again. If thou see the ass of him that hateth thee lying under its burden And would forbear to help him Thou shalt surely release it with him. (23, 4-5)

The context of these two precepts - the restoring of lost property and the giving of help in relieving an animal of its burden - is puzzling. They come right in the middle of a paragraph dealing with the administration of justice, to be precise, following a verse prohibiting partiality to the poor and preceding one prohibiting prejudice against the poor. The two verses we wish to study seem to come between two obviously closely linked passages. Our early commentators did not pay much attention to the internal sequence of the rulings in the Sidra. Ibn Ezra states quite bluntly:

Let me clarify one principle before I begin my explication: every sentence of ruling stands on its own. If we can find a reason linking the verses, we shall link them as far as possible. If not, we shall assume that the fault lies in the limitations of our knowledge.

Ibn Ezra does indeed try to uncover such links but his efforts are not particularly successful. Other commentators pay more attention to this problem.

Here are two more recent commentators.

First Shadal on the words: "thou shall surely bring it back to him again":

Above the text deals with situations where love is the undoing of justice-don't throw in your lot wit the wicked-don't follow the majority in any unjust cause, don't be partial to the poor. Now in contrast the text deals with cases where hate is the undoing of justice. quot;Meetingquot; and quot;seeingquot; the property of your enemy is followed by the prohibition of perverting the judgement of the needy since it is apparent disreputable character of the needy which prejudices you against him.

Cassuto fits our passage into the general context on the basis of his verbal association approach:

Verse 6, You shall no pervert the justice due to your 'evyon' (usually rendered: quot;poorquot;) in his suit, appears, at first, surprising, since it was already stated in v.3: quot;nor shall you favour a poor manquot;, and it seems an unnecessary repetition. But we may presume that the word 'evyon' here is not the usual word meaning, poor and needy, but another substantive from the stem 'ava', 'avi' - found in other Semitic languages, and possibly originally also in Hebrew, which means quot;to refuse, be unwillingquot;. Accordingly, the noun denotes here an quot;opponentquot;, quot;adversaryquot;, and is synonym of the nouns 'oyev' (quot;enemyquot;) and 'sone' (quot;one who hatesquot;). This signification makes it easier to understand the use here of the pronominal suffix, second person (-kha), which would not have been justified if 'evyon' had been employed in its usual connotation (the position is different in Deut. 15, 11: quot;to your brother, to your needy and to your poor, in the landquot;). If this be so, we have here a prohibition corresponding to the two preceding admonitions: when you are called upon to adjudicate between your enemy and someone else, do not pervert the judgement against your enemy, because he is your enemy. The three verses of this group thus contain three synonyms, your enemy - one who hates you - your adversary, just as in the three verses 17-19 of chapter XXII we find three synonyms for the death-penalty.

Shadal looked for a common psychological love-hate factor linking the rulings enunciated in v.1-6. But his explanation lacks plausibility. Love is not necessarily the factor prompting one to bear false witness in favour of the wicked and follow the majority in an unjust cause. It might just as easily be hatred for the opposing party.

An objection may be raised against Cassuto's explanation of the word 'evyon'. It is not the only time this word appears and wherever it does, it is a synonym for 'oni' (poor). In this verse 11 it is used in that sense (as Cassuto himself admits). His unusual explanation of the word 'evyon' here is evidently dictated purely by the desire to find an associative of the verses still remains.

Let us now try to understand the verses as they stand irrespective of any linking between the immediately preceding and succeeding passages. Who is the quot;enemyquot; ('oyev') and the quot;haterquot; ('sonei') in the passage? Rambam poses the following question on our verse:

How is it conceivable that one Jew should have another Jew for an enemy, when the Torah states-quot;thou shalt not hate thy brother in thine heartquot; (Lev. 19,17)? (Code Rozeah 13)

Our sages postulated a situation were hating is permitted:

R. Eliezer states: The verse deals with a proselyte who has relapsed into idolatry. R. Isaac states - The verse deals with a Jewish transgressor. (Mekhilta)

Rambam basing himself on the view of R. Nahman b. Isaac in the Talmud Pesahim (113b) proffers the following explanation:

For instance, if he alone saw him commit a transgression and warned him, but he heeded not. In such a case it is his duty to hate him until he repents and turns back from his wickedness. Nevertheless, if he had not yet repented and he found him recoiling at the load, it is our duty to assist him in loading and unloading and not leave him in mortal danger. Peradventure he will be delayed on the journey for the sake of his property and will be brought to danger, the Torah holding Jewish life dear, whether of the wicked or righteous...

However, in addition to the commentators who explain quot;thine enemyquot; to imply one who is a legitimate object of hatred, we find another and more simple explanation:

R. Nathan said: What is the implication of the phrase: Thine enemy? It refers to a situation in which someone becomes your enemy, temporarily, as a result of striking your son or picking a quarrel with you. (Mekhilta)

Rashbam made the same point when, with his customary brevity he wrote:

quot;the text describes realityquot;. Malbim maintains that the verse treats of someone who is your enemy, even though you have no moral right to hate him. You have not succeeded in conquering your evil instincts and this man happens to be your enemy. Accordingly, the Torah is not here legislating for an ideal world, where people do not hate each other, but takes into account the grim reality, that people do not achieve the desired observance of: quot;thou shalt not hate thy brother in thy heartquot;. The Torah lays down rules of behaviour even for such an admittedly immoral situation, where two people are hostile to one another, enjoining such acts of assistance as relieving the ass of an enemy of its burden and the returning of his lost property. Theses small deeds of goodwill would, it was hoped, eventually lead to the removal of the hatred, in accordance with scriptural demand.

Verse 5 poses difficulties of a syntactic and semantic nature. The syntactic problem is: where does the conditional clause ki tire'h quot;if thou seequot; end and where does the matrix sentence begin? The second problem is what is the connotation of the root a'z'v that occurs here three times. If the connotation is consistent throughout how can the text affirm and deny the same action in the same sentence?

Rashi makes the following comment:

Ki here has the force of quot;perhapsquot; which is one of the four connotations of ki. The verse thus reads: quot;Perhaps you may see his ass lying under his burdenquot;. quot;and would forbear to help himquot;, to be read as a question. 'azov ta'zov 'imo: an expression of assistance as in (Deut. 32,36) quot;assisted and helpedquot; ('azuv) and Neh. 3, 8: vaya; azvu Jerusalem up to the wall-i.e. they filled it up with earth and helped to strengthen the wall. Similarly (Deut. 7, 17): quot;When thou sayest in thine heart, these nations are too numerous for mequot; should you say so? -quot;Do not fear themquot;

What prompted Rashi to read the first part of the verse as posing a hypothetical question? Why didn't he read it in the same way as he did the ki clauses of all the other rulings (ki tikne; ki yinazu anashim quot;when two men quarrelquot; and in verse: ki tifga'...)?

Because in his view the matrix clause or quot;cutquot; in the complex sentence does not begin at vehadlta (and thou forbear) but at 'azov (thou shall surely release). Hadalta is a coordinate of the opening clause. He cannot therefore read it as a simple quot;openquot; conditional statement, but must read it as a question. Otherwise there would be an internal contradiction. The point is well put by Rashi's super commentator Wolf Heiden Heim, in Havanat Hamikra:

The reading: quot;if thou see the ass of him that hateth thee and forbear to help him-help him quot; makes no sense. Since you have refrained from helping him how can you help him? Rashi therefore explains ki in the sense of quot;perhapsquot; which qualifies to the second verb vehadalta: quot;should you see and should you want to withhold your assistance. Don't do such a thing. But give him every assistance!

The same applies to the supporting text cited from Deut. There too the reading quot;when you say in your heart, these nations are too numerous for me...do not fear themquot; makes little sense. It must be read as a hypothetical question. Should it occur to you to fear them, then I tell you: Don't be afraid.

In Rashi's view a'z'v implies quot;helpquot;. In this he was preceded by Ibn Janah who based this connotation on its use in Nehamia 3, 34: quot;Will the restore at will (ha-ya'azvu) will they sacrificequot; and (ibid. v. 8): quot;They restored (va-ya'azvu) Jerusalem...quot; Where it connotes strengthening and rebuilding. He also cited the nominal ma'aziva referring to the ceiling plaster which is likewise used for strengthening the building. The meaning has thus been extended to the loading of burdens: quot;you shall surely help himquot; which involves the idea of strengthening and building.

Several commentators accepted Rashi's division of the verse agreeing with him that the second sentence quot;and forbear to helpquot; is coordinate with the first. But they do not accept his semantic interpretation that we have here an underlying question marker. The reading disqualified by Rashi, (quot;and if you forbear to them, helpquot;) as contradictory is made sense by them. Here is the way one of them, Avraham ben Ha-rambam, justifies the reading:

In other words, if your anger or sense of grievance forces you to withhold your assistance from him do not yield to it but help him unload, in spite of yourself.

Benno Jacob echoes, though quite unknowingly, this explanation:

When you see the ass of him that hateth thee..and your first thought will be to ignore him and refuse to extend a helping hand: You will say to yourself: Shall I do a good turn to one who has treated me so badly? The Torah calls on you not do so but to do everything to help him.

But most of our commentators, modern and ancient, link the second clause quot;and forbear to help himquot; to the matrix sentence. The condition ends at the first line after quot;burdenquot;gt; But the differ over their interpretation of the root a'z'v, some accepting Rashi and Ibn Janah's view, others rejecting it. Ibn Ezra takes the latter view and read the verse:

Forbear to leave it to him alone but untie the knots with him and leave the burden so that it will fall down on both sides and the ass will get up.

Ibn Ezra takes a'z'v in its customary sense of leavequot;. He extends this basic sense to cover the idea of quot;releasequot;, an interpretation followed by many expositors. Cassuto reverted to Rashi's rendering of a'z'v basing himself, however, on comparative Semitic usage. But syntactically he follows Ibn Ezra:

quot;You shall cease to forsake (azobh) himquot;, that is, you shall refrain from leaving your enemy in perplexity. On the contrary, 'azobh ta'azobh with him - you shall arrange together with him the load on the ass's back. There is a play here between the two verbs, which have acquired in Hebrew an identical form, although their derivations and significations are different. Azabh with original Zayin, means quot;to forsakequot;, whilst azabh, with a Zayin that derives from Daled, means quot;to arrangequot;, and is from the same stem as the noun ma'azibha (quot;Pavementquot;) and the verb wayya az (quot;pavedquot; or quot;repaired) in Neh. 3, 8, corresponding, to South Arabian dhb and Ugaritic db. Possibly the two Hebrew verbs were differently pronounced, and the quip was clear in the ancient Hebrew pronunciation: Do not forsake (ta'azobh), but, on the contrary, arrange the load (ta'adhobh)

Many principles of moral conduct can be learned from these verses. His behavior towards you must not be a yardstick for you behavior towards him. quot;Thou shall not take vengeance nor bear a grudgequot; states the Torah (Leviticus 19, 18) and in Proverbs (25,21) we have: quot;If thine enemy be hungry, give him bread, and if he be thirsty, give him water to drinkquot;. Negative avoidance of evil is not sufficient. The positive doing of good is demanded to lend your enemy a helping hand. The Targumim expounded the spirit of the text even if they did not reflect surface reading. Onkelos reads: quot;leave completely all that is in your heart against himquot;. Targum Jonathan: quot;At that moment completely leave (forget) the hatred in your heart against him and help to release and load the burdenquot;.

The Torah did not confine itself to the abstract moral injunction of: quot;Thou shalt not hate thy brother in thy heartquot;, but provided in these two verses practical guidance on how to achieve this and eradicate hatred from ones heart. The restoring to him of his lost property is one step nearer reconciliation. But it does not necessarily lead to intimate contact. The article can be returned without a word being exchanged or through a third person. Helping him to load and unload a beast, on the other hand, involves direct personal contact and cooperation. The situation is vividly portrayed for us by the Midrash:

quot;Thou hast established uprightnessquot; (Psalms 99, 4), R. Alexandroni stated: To ass drivers who hated each other were travelling along the same road. The ass of one of them fell down. The other saw it but passed him by. After he had passed by he said: It is written in Holy writ quot;if you see the ass oh him that hateth thee..you shall surely release it with himquot;. Forthwith he went back to help him with the load. The other began to think things over and said: So and so is evidently my friend and I didn't know it. Both went into a roadside inn and had a drink together. What led to them making it up? One of them looked into the Torah. That is the meaning of the text: quot;Thou hast established righteousnessquot;. (Tanhuma Yashan Mishpatim)

There is a further point to consider. The difference in the wording between the two phrases: quot;When thou meet the ox of thine enemyquot;, and quot;when thou see the ass of thine enemyquot; underlines another aspect of these moral injunctions. In the case of returning lost property, The Torah goes no further then demanding that we restore it to its owner, only when we happen to light on it. We are not enjoined to run after it. In the case of the ass suffering under its burden, however, we are told to go to the owner's assistance, even when we but see it from afar. We have to leave our own business and go and help, since here suffering to the animal is also involved. As is stated in the Psalms: quot;His mercy is upon all His worksquot;, and the Almighty is concerned that we both assist our neighbour and also relieve the animal's suffering. How are we enjoined to behave should there be a conflict of interests, such as between an enemy and a friend, between man and beast? Let us compare two verses on the same subject. In our sidra we have:

If thou see the ass of him that hateth thee lying under its burden, and wouldst forbear to help him; thou shalt surely release it with him. (23, 5)

Later it is stated:

Thou shalt not see thy brother's ass or his ox fallen down by the way, And hide thyself from them; Thou shalt surely help him to lift them up again. (Dueteronomy 22, 4)

On this our sages commented as follows:

quot;Thou shalt surely help [with] himquot; - this refers to the duty of relieving the animals of its burden. Further it is stated: thou shalt surely help [with] him to lift up againquot; - this refers to the duty of the loading. (Mekhilta)

Rabbinic tradition tells us that where two cases calling for our help are involved, the one requiring unloading takes priority over the one calling for loading. The reason is obvious: Releasing the burden involves relieving the animal's suffering. But the Gemara cited another situation underlining an important principle:

Friend requires unloading, enemy, loading - our first duty is attend to our enemy in order to discipline our instincts. (Bava Mezia 32b)

In other words, the duty of relieving the suffering of animals must give way to the more important obligation of moral improvement, of breaking the evil inclination. There is thus on order of precedence in fulfilling our moral duties. We are not at liberty to make our own rules and regulations regarding the scale of values to be observed. We must not act like those whom the prophet condemned: quot;the sacrificers of men kiss calves' (Hosea 13, 2), like those who proclaim their solicitude for animals but ignore the suffering of humanity.

But even altruism has its limits. The Torah defines those just as carefully in order to leave no room for the exploitation of human goodwill. Here is Rambam's restatement of the Talmudic rulings on this subject:

If he found his fellow's beast lying down under its burden, it is his duty to relieve it and load it again, even in the absence of the owner, as it is said: quot;thou shalt surely help [with] him to lift up again', (the doubting of the verb form translated by quot;surelyquot;) implying, in all circumstances. In that case, why did the Torah add the additional word quot;with himquot;? From this we learn that if the owner of the beast was originally present, but then went and sat himself down and said to the one who met him: quot;Since the moral duty is incumbent on you, if you wish to unload by yourself, unload!quot; In such a case he is absolved from his duty, since it is stated quot;with himquot;?

The Torah is concerned not only with protecting the one needing help but also with the one called upon to help. Otherwise both will suffer. The former will become accustomed to relying on others, will abuse his privilege. The latter will harden his heart in order to defend himself against unreasonable demands for assistance ultimately refusing even the deserving cases.