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Law and Order

Parashat Mishpatim (Exodus 21:1 - 24:18)

by Rabbi Daniel Bouskila

January 31, 2008 | 7:00 pm

In his magnum opus on the history and development of Jewish civil law, "Ha-Mishpat Ha-Ivri" ("Jewish Law"), Israeli Supreme Court Justice Menachem Elon remarks that basing a viable modern legal system on Jewish Law is no easy task -- "it calls for great intellectual effort, creativity and boldness."

While the questions associated with incorporating Jewish civil law into Israel's legal system are complex and beyond the scope of this column, I do wish to pose one modest question: Is it possible, in select instances, for the principles and spirit of Mishpat Ivri to serve as a quasi-legal and moral guide on certain matters of Israeli policy?

There is no better Torah portion through which to explore this question than Parashat Mishpatim, where 40 of the 53 commandments address matters of civil law and from which many of the core principles of talmudic logic and jurisprudence are derived.

For instance: "If a burglar is caught in the act of breaking in, and is struck and killed, it is not considered an act of murder" (Exodus 22:1).

The Talmud (Sanhedrin 72a) begins to explain the rationale for the Torah's ruling by establishing the principle that "no person will sit idly by and watch a burglar steal his property." With this principle in mind, the Talmud posits that the burglar in question will reason to himself: "Upon entering the house, the owner will confront me and attempt to prevent me from stealing his property, and if he does so, I will kill him." From this rationale, the Talmud deduces that the burglar is ultimately a threat to the property owner's life, and given this rationale the Talmud rules: "If one comes to kill you, arise and kill him first."

The Shulchan Aruch (Code of Jewish Law) affirms this talmudic principle and rules: "If one sees that someone is pursuing him with the intention to kill him, he is permitted to defend himself and [even] take the life of he who is pursuing/attacking him" (Shulchan Aruch, Choshen Mishpat, 125a).

The logic behind all of this is that a burglar is ultimately deemed a threat to one's life, and when one's life is clearly being threatened, self-defense is an individual's legal priority and moral right.

Taking this line of reasoning from the private realm of personal danger to the public domain of an existential threat on an entire community, the Talmud (Eruvin 45A) asks if the residents of a city in Israel who come under siege on Shabbat are permitted to violate Shabbat and take up arms in order to defend themselves. The Talmud rules that if the siege is launched with the clear intention of taking the lives of the city's residents, then the residents must violate Shabbat in taking up arms to defend themselves. Maimonides (Laws of Shabbat 3:23) expands this ruling by stating: "It is a mitzvah for all Jews who are able to come and help defend their brethren [in such a situation] to come and do so, and it is forbidden for one to delay their coming until after Shabbat."

Although the Talmud and Maimonides make no direct reference here to the Talmud's aforementioned ruling of "If one comes to kill you, arise and kill him first," it is clear that the overriding principle of self-defense in the face of an existential threat -- whether private or communal -- is common to both cases.

Since September 2005, following Israel's withdrawal of troops and evacuation of 8,000 Israeli Jews from the Gaza Strip, Hamas (whose stated political intention is the destruction of Israel) has launched more than 4,000 Qassam rockets into the Israeli city of Sderot and her immediate surroundings. Would anybody (including Hamas) argue that thousands of rockets launched onto a civilian population -- into schools, hospitals, stores and bedrooms -- are anything less than a clear existential threat on the city's residents?

Maimonides ruled that in cases such as Sderot we do not even wait until Shabbat is over. Two and a half years and thousands of rockets later, Shabbat is long over. No measure of Talmudic logic can explain the delay.

The daily existential threat to the residents of Sderot is as appropriate an opportunity as any for Israeli policy makers to seek guidance from Mishpat Ivri -- Jewish civil law -- in fulfilling their moral obligations as a sovereign government to defend their citizens. After all, Israel is a Jewish state, isn't it?

Daniel Bouskila is the rabbi at Sephardic Temple Tifereth Israel.

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