Who Needs Torah-Based Civil Law?

by HaRav Zalman Baruch Melamed
Rosh HaYeshiva, Beit El

This week's Torah reading of Mishpatim appears to be a major departure from the stories of our Avot and the stories of Divine miracles that we have read until now, in that it is largely a list of civil laws: Who is responsible for which damages under what circumstances, who pays if one ox gores another, how much a thief must compensate his victim, lost objects, majority rule, milk and meat, and much more. One of the questions we must ask is: Why did the Torah make rules for civil law in certain areas, and not leave them up to the will of the people in each society?

One of the primary aspirations of the religious community in Israel is that the law of the Jewish state, the State of Israel, must be Torah law. The weekly Torah portion begins: "And these are the laws that you [Moshe] shall place before them" – these laws, and not those of other societies. The Torah established rules of justice in monetary matters not only when they concern spiritual matters, but also in issues between members of the society, and did not leave the monetary domain for us to decide for ourselves.

It is true, though, that each society is authorized to institute agreed-upon regulations in monetary issues, and even when they negate Torah law: "One who makes a stipulation counter to that which is written in the Torah, his stipulation stands" (Ketuvot 56a). For instance, the Torah determined the monetary obligations between spouses, but if they agreed between them at the time of marriage to forego each other's obligations, this condition stands.

In light of this, we must understand why the Torah saw a need to set financial obligations, and did not leave it up the parties, or the public at large, to decide these matters. And why did the Torah set parameters for damages and torts, such as laws of guardians, loans, acquisitions, inheritances, and even gifts? Could it not have left these matters to the public, especially given the fact that the Torah itself allows us to make changes that then become Torah law themselves.

The answer is that the purpose of the financial laws of the Torah is not only to regulate societal life and to solve monetary disputes between people. These laws also have a spiritual purpose. By keeping the mitzvot, including these, the Divine Presence dwells in our midst, and Divinity becomes a part of the Israelite nation, and Divine abundance is brought upon the nation. This is also the story with all inter-personal mitzvot of the Torah, as the great 14th-century Torah giant Rabbeinu Nissim wrote in his classic Drashot HaRan. This is why the Torah specifically states: "These are the laws that you shall place before them."

Yes, the Torah allows us to make stipulations and in effect change some of these laws – but this is because in the end, the Torah does not deny the fact that our money belongs to us. The Torah allows us to forego what is coming to us, and to give away our money, and spend it as we wish. If the Torah grants one a monetary right, he is permitted to give it away as he pleases.

But this right has to do only with the details. To uproot the entire body of Jewish monetary law, and to institute in their place laws and rules from other nations and societies – this the Torah does not allow. Nor does it permit the Jewish Nation to make up an entirely new body of laws, based neither on foreign law nor on Torah law, but rather on our own logic and rationale. Precisely regarding this the Torah states: "These are the laws that you shall present before them" – these and no others. The verse actually starts with the letter vuv, meaning "and;" how can a new passage start with "and?" The Sages' answer (in Sh'mot Rabba 30,3) is that Parashat Mishpatim is actually not something new, but rather a continuation of the previous Torah portion – in which we learn of the Ten Commandments! Just like those were given at Sinai, so too the civil and other laws in Mishpatim.

And the Sages also derive from this verse that the judges must be worthy in terms of their Torah commitment and knowledge: "These are the laws that you shall present before them" – and not before one who is not worthy of being a judge according to the Torah (Gittin 88b). The judgements must be according to Torah, and the judges, too, must be similarly Torah-based. For this we pray thrice a day: "Restore our judges as of old."

The Prophet Yishayahu tells us (56,1): "So said G-d: Safeguard the law and do justice, for My salvation is close to coming, and My righteousness is soon to be revealed."