In parshas Mishpatim the Torah
starts to detail the laws particularly to those that regulate conduct between
people. Various words are used to generally describe desirable obligatory practices.
Common ones are “Mishpatim” (משפטים)
often translated as statutes, “chukim” (חוקים)
often translated as rules or laws, and “dinim” (דינים)
often translated as judgments. Their names illustrate different aspects of the law;
however the terms are used interchangeably often with little or no regard to
the fine points of their meaning. An example of this the verse, “that there
[he] place before them chok and mishpat”, (Exodus 16:25). On it Rashi adds the word “dinim”.
Mishpatim are conceptually the
easiest to start with. Petach Eliahu describes mishpat as the central pillar
and compares it to a balance scale that is entirely accurate. The basic idea is
a proper weighing of two sides of an argument. More fundamentally mishpat
represents the concept of fairness. He continues that mishpat is according to a
man’s actions. In addition it has an unknown aspect of mercy, perhaps referring
to mitigating circumstances.
The word chukim is a variant
of the word chkak (חקק) which means engraved
or written. Yehuda is described in the Torah and the book of Psalms as a
m’chakayk (מחקק\י) (see Genesis 49:10
and Psalm 60:9). This is because Yehuda as the royal tribe is charged with
running the legislature. The act of writing down a law or carving it into stone
is an aspect of its establishment. Essentially this means that the way the law
is written is the way it is. Therefore fulfillment of a chok (חוק)
revolves around evaluation of its text. Mishpat is a refinement of this idea in
that includes written principles but says that the outcome must also be
reasonable.
An example of the principle
mishpat is found in Rashi’s commentary on the verse that if a normal ox gores
another ox, killing it, then the live ox and the carcass of the other ox are to
be sold and the proceeds divided between the two owners (Exodus 21:35).
Bringing a Gemara (Buba Kama 16b), he explains that this law cannot be
literally applied in situations where there is a large difference in the value
of the live and dead oxen, because it would result in one of the parties in
fact profiting from the mishap. He concludes that the owner of the dead ox only
receives the lesser of either half of his actual loss or the value of the live
ox.
The word dinim (דין,
דינים, דינין), which can be rendered as judgments, is related to the word
discuss (דון). The idea is that a
judgment is related to a discussion among the parties. Petach Eliahu
characterizes din as strength. This suggests that in justice there is an aspect
of how strong a party feels about its position.
An example of this is found in
the case of a pregnant woman who is accidentally struck by one of two men a
fist fight causing her to miscarriage. The woman’s husband is entitled to sue
for damages, but the amount of the award is determined by the court. Rashi’s
commentary indicates that there is an interplay between punitive and
compensatory damages. The fact that the husband must sue introduces a
subjective criteria into a process that could be purely objective (See Shmos
21:22).
The Sifsay Chachamim comments that a legal case should only be placed
before an expert and not before a dilettante The Or HaChaim brings a
discussion about the principles and particulars of the law concluding that all
aspects should be placed before the student like a “set table” (כשלחן הערוך). The Ramban declares that the judges
should be experts and reliable following the tradition of Moshe rabenu.
Acknowledgements to
websites: תורת אמת, וויקיטקסט, http://dictionary.reference.com/,
http://hebrewbooks.org/,
, לע"נ סבתא ,טויבע בת
יואל לייב ז"ל נלב"ע כה שבט תשכ"ג וגם בדואר אלקטרוני ניתן באתר http://dyschreiber.blogspot.co.il
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