What judgements are excluded by the word ‘these‘?

(21,1) And these are the judgements that you shall set before them. When you buy a Hebrew slave…

The words “and these”, can be explained according to the gemara in Bava Basra 89b concerning the laws of false measurements - R. Yochanan ben Zakkai said: Woe is to me if I relate these laws, and woe is to me if I don’t relate them. Woe is to me if I relate them, because swindlers might learn from them how to swindle. Woe is to me if I don’t relate them, because then the swindlers might say that the Sages are not expert in the swindles that we perform, and they will be encouraged to swindle further. Some say that he did not relate them, and some say that he did relate them. And based on what posuk did he relate them? “The ways of Hashem are straight. The righteous walk in them, and the wicked stumble in them” (Hoshea 14,10).

According to the opinion that he did not relate the laws because he was concerned that people might learn from them to swindle, the meaning here is that there were certainly many other laws which fall into the category of business interactions which Moshe could have taught, but knowledge of which could be used to trick one's neighbour, and these laws Moshe did not wish to place before Yisrael lest they learn from his words how to swindle. Therefore Hashem said to him “These (specifically) are the judgements which you shall place before them”, that is, “when you will buy a Hebrew slave”, and all the other laws that are enumerated here, about which you don’t need to worry that they will learn how to swindle. But all the other laws from which people might learn to do falsely do not place before them.

Why is it mandatory that we be judged before Jewish courts?

(21,1) And these are the judgements that you shall set before them.

Another explanation of this posuk is according to what Chazal taught, that even if the nations would judge a case according to the exact same laws that Yisrael use, it would still be forbidden to have a case judged by them. This is what the posuk is saying, “These are the judgements that you shall set” - even if they are the very same laws and judgements that you shall set, nevertheless, it should be "before them” - only before them, and not before the nations.

With this we can understand the connection between the beginning of this parsha and the end of parshas Yisro, where it said, “you have seen that from the heavens I have spoken with you. You shall not make gods of silver with Me”. And we can also understand that which Dovid Hamelech said in Tehillim (97,8) “Zion heard and rejoiced, and the daughters of Yehudah exulted, because of Your judgements, Hashem. For You, Hashem, are most high above all the earth; You are very much exalted above all the gods”.

But first we need to understand why is it forbidden to be judged in front of non-Jews. If he is indeed being judged according to Jewish law, what difference does it make if the judge is not Jewish? The answer is that Hashem wants Yisrael to have no intermediary authority or judge over them, only Hashem Himself. Now, if Jewish judges are judging them, it says in Tehillim (82,1) “G-d stands in the congregation of G-d; in the midst of judges He will judge”, and Chazal teach that if three people are sitting and involved with learning Torah, (and judging a case according to halachah is itself learning Torah), the Shechinah dwells amongst them. If so, it is really Hashem who is doing the judging, and the judges are just His spokesmen. But if non-Jews are doing the judging, the Shechinah would not be there, and so the litigants would be judged by an intermediary, someone other than Hashem. For the same reason a convert cannot be a judge, because the Shechinah only dwells amongst families with unblemished Jewish genealogies. Therefore, it would be the convert, an intermediary, who is judging, and not Hashem, and G-d forbid that such a thing be done.

This is what the posuk is saying, “you have seen that from the heavens I have spoken with you. You shall not make gods of silver with Me”. That is, it is forbidden to make any intermediary with Me, and since this is so, “these are the judgements which you shall place before them”, and not before the nations. Even if they judge with the same judgements with which Yisrael judge, even so, it is forbidden to do by an intermediary, only by Hashem Himself.

This is what Dovid Hamelech wrote, “Zion heard and rejoiced, and the daughters of Yehudah exulted, because of Your judgements, Hashem” - because of the judgements about which You said that even a law which the nations judge like the laws of Yisrael should be judged only by Yisrael, and not by the nations. When Zion heard this, she rejoiced, because “You, Hashem, are most high above all the earth” - even though You are most high above all the earth, nevertheless, “You are very much exalted above all the gods”, because all the nations consider it honourable to use intermediaries, but You, on the other hand, are particular that there should be no intermediary between You and Yisrael, and by this it is clear that You are very much exalted above all the gods.

How does a law which is a judgement differ from one which is a statute?

(21,1) And these are the judgements that you shall set before them.

In the Yalkut it says that our posuk is explained by the posuk in Tehillim (147,19) “He tells his words to Yaakov, His statutes and judgements to Yisrael”. What does the Yalkut mean? (The word ‘statute’ as used by the Torah, means a law, the reasoning of which we do not understand, as opposed to a ‘judgement’, which is a law whose reasoning we do understand.)

But first we need to understand the words of the Midrash on our posuk - Hashem said: I have given to you the Torah; if you accept the laws, good. And if not, I will take my Torah from you. It is not clear how this connects to our posuk.

But it seems to me that the Midrash is teaching us that it is possible to merit the Torah only when there is peace and unity amongst Yisrael. As it says in Tehillim (29,11) “Hashem will give עוז to His people, Hashem will bless His people with peace”, and the word עוז means Torah. Also, it says in Shemo (19,2) that at Mount Sinai “Yisrael encamped (ויחן) there opposite the mountain”, and Chazal explained that the use of the singular is to teach that they attained unity there, and through this they merited to receive the Torah.

Now, peace is impossible except when there is a judge making peace between a man and his fellow by judging their case. Therefore, it is clear why Hashem said that if you accept the laws then there will be peace amongst you, and you will merit to receive the Torah. But if you do not accept the laws, then there will not be peace, and where there is no peace, there is nothing, and you will not merit the Torah.

It says further in the Midrash that the Torah has laws before it and laws after it. Before the giving of the Torah, when they were in Marah, it says (15,25) “there He gave them a statute and a judgement”. And after the giving of the Torah it says “these are the judgements”. This is again saying like I just explained, that it was impossible to receive the Torah without peace, and peace is impossible without laws. Therefore it was imperative that Hashem should give them laws in Marah through which there would be peace amongst them, and so they could receive the Torah.

Now, it was impossible to tell them every law that there will be in the world until the days of Moshiach, but rather Hashem gave them some of the laws, and when a situation arose which required a new law, a judge would learn from the laws which had been told to Moshe and understand what the new law should be from that which is already known. However, as long as Hashem had not yet given them the Torah, they did not yet have a straight intellect to understand and extrapolate one thing to another, because only at Mount Sinai did everyone receive that which they were destined to reveal themselves in the Torah, and so only then they achieved the ability to think correctly and grasp each matter according to the truth of the Torah.

And so even though they had received some laws at Marah, nevertheless, if a situation occurred which required a different law which had not been said to them, they were not able to decide it on their own, because they had not yet understood the reasoning behind the laws which would enable them to extrapolate from one law to another. Instead they were forced to ask Moshe, and Moshe would ask Hashem to explain to them, and so the judgements were to Yisrael like statutes at that time. Even though after the giving of the Torah they were judgements since they then recognised the reasons, beforehand they were like statutes, and so only Moshe could decide new cases.

This is the meaning of the Midrash, that the Torah has laws before it, and laws after it. The laws before it were those that were given at Marah “there he gave them a statute and a judgement”. Both terms are referring to the same set of laws, and in fact they were all judgements and had a reasoning behind them, but in their eyes these laws seemed like statutes, and so they did not know how to learn from them to other laws. Therefore they were given laws afterward - “and these are the judgements” - because by then all Yisrael understood that they were judgements since they understood their reasoning, and so they were now able to extrapolate with their intellect from one law to another and no longer needed to ask Moshe specifically. Thus it says “and these are the judgements which you shall place before them”, before all of Yisrael, because even they can understand the reasons. The words of the Midrash have been precisely explained.

With this we can understand clearly the words of the Yalkut that we brought above, that our posuk “these are the judgements” is explained by the posuk in Tehillim “He tells his words to Yaakov, His statutes and judgements to Yisrael”. The Yalkut had a problem with the posuk in Tahillim, because first it says “His statutes and judgements to Yisrael”, but afterwards it says, “He did not do so for any nation, and they have not known His judgements”. Why did it not say here also "they have not known His statutes and judgements"?

But according to what we explained above the explanation is that there are certainly those from the nations who understand the Hebrew language, and who can therefore learn what is written in the Torah and so know its laws. But in their eyes they are all like statutes, because as long as they remain one of the nations they are not able to understand one thing from the next, in order to decide a law which is not stated explicitly in the Torah. But by Yisrael they are judgements.

Therefore it says “His statutes and judgements to Yisrael”, because by Yisrael there are mitzvos which are statutes, and there are mitzvos which are judgements, but by the nations they are all like statutes. But the nations “have not known His judgements” - they do not understand the correct reasons of the laws to allow them to extrapolate, because the light of Torah does not shine upon them.

If someone who kills unintentionally does not flee to the city of refuge, is he put to death by the court?

(21,14) But if a man plots deliberately against his friend to kill him with cunning, from My altar you shall take him to die.

Rashi explains that the words “plots deliberately” come to exclude killing unintentionally. But the Re’eim asks on this, that the case of unintentional killing has already been dealt with in the previous posuk, “but one who did lie in wait for him, but G-d brought it to his hand, I will make a place for you to which he shall flee”!

But it seems to me that what Rashi means is that I might have thought that granted one who kills unintentionally gains atonement by going into exile, but this is only to exempt him from the death penalty, and if he does not go into exile he will be put to death by the court. But really the law is that even if he does not flee, he is still exempt from the death penalty. (However, the consequence of not fleeing is that if the ‘redeemer of blood’ - the relative of the slaughtered person - would kill him, he would not be punished for the killing.) Thus Rashi explains that the Torah writes “but if a person plots deliberately” to exclude unintentional killing, to teach that even if he does not go into exile he is exempt from the death penalty.

How much would one pay for stealing a cow?

(21,37) If a man steals a bull or a lamb, and slaughters it or sells it, he shall pay five cattle for the bull and four sheep for the lamb.

Rashi brings the Mechilta on this posuk - Said Rabban Yochanan ben Zakkai: Hashem was considerate of people’s honour, and so for a bull which walks on its own feet and thus the thief was not disgraced by having to carry it on his shoulder, he pays fivefold. But for a lamb which he carries on his shoulder he pays fourfold, because he was disgraced by it. Said R. Meir: Come and see how great is the power of work! For a bull which he stopped from its work, he pays five, and for a lamb which he did not stop from its work, he pays four. But why was there a need to bring both reasons?

But it seems to me that there is a practical difference between these two reasons, and that is if one steals a cow. According to the opinion that the difference between payment of four or five is because Hashem was considerate of a person’s honour, then since a cow walks by itself and so he suffered no disgrace, he should pay five. But according to the opinion that the difference is because of the stopping of work, then since a cow is not a work animal, and even if it does work sometimes it is not the common case, therefore he should pay only four. And since there is this practical difference between the two opinions, Rashi was unable to bring only one of them in explaining the posuk.

How is oppressing widows and orphans really oppressing Hashem?

(22,21) You shall not afflict any widow or orphan. If you afflict him, if he cries out to Me, I will surely hear his cry. My wrath will be kindled, and I will slay you with the sword, and your wives will be widows and your children orphans.

It seems to me that the meaning of the posuk is according to what Chazal said on the posuk in Zechariah (2,12) “whoever touches, you, touches the apple of his eye” - His (Hashem’s) eye, so to speak. Thus the posuk is saying that one who afflicts a widow or an orphan, do you think that you are afflicting them? Behold if they cry out to Hashem, He will have mercy upon them, because Hashem is merciful and gracious. If so, it is like afflicting Hashem Himself. That is why the posuk uses a double expression תענה ענה - to express wonder, “is it really them that you are afflicting? If they cry out to me, I will surely hear them”, and if so, you are effectively afflicting Me and not them.

Alternatively, we can explain that since Hashem is very merciful towards widows and orphans, He is saying: If you afflict them and they cry out to Me, My anger will be kindled and I will slay you, and then your wives will become widows and your children orphans, and through this you will cause Me distress, and so you will be afflicting Me. Thus the posuk “If you afflict him” means "is the affliction to him?". No, mine is the affliction, because if he cries out to Me, I will surely listen to him, and have mercy upon him and consequently your wives will become widows and your children orphans, and so this punishment that will happen to you will itself be an affliction to Me.

What should one do if a poor person is unable to pay a debt?

(22,24) When you lend money to My people, to the poor person with you, you shall not be towards him as a lender; you shall not impose interest upon him.

In the Midrash it says that our posuk is explained by the posuk in Tehillim (112,5) “Good is the man who is gracious and lends, who conducts his affairs with judgement” - and there no one who is not obligated to Hashem. What is the Midrash saying?

It seems to me that the Midrash had a difficulty with the language of the posuk, which says “you shall not be towards him like a lender”. If the posuk means to say that it is forbidden to demand money from the poor person if he does not have it, then it should have said, “do not be towards him a lender”. Why does it say “like a lender”? Also, the order of the posuk is strange; it should have first said “do not impose upon him interest”, and then it should have said “do not be towards him like a lender”, because imposing interest takes place at the beginning of the loan, and the prohibition to demand the money is later, when the time of repayment arrives.

Therefore the Midrash explains that the posuk comes to teach us that not only is it forbidden to demand money from him, but even if you have already lent money to a poor person once and he had no money to repay the loan, and he comes to borrow from you again, do not behave towards him the way most people would, and say to him: Behold, you are already in debt to me and you have not yet paid. Granted that I am not going to demand money from you, but nevertheless I’m not obligated to lend to you further. Hashem commanded that one should not say this, because even though he is not demanding payment, nevertheless, he is showing that he has not yet forgiven him the loan, and in his mind he is still obligated to him. Instead, Hashem commanded him that he should put in his mind that he is not a lender to the poor person at all - that he has already forgiven the first loan and it as if he had never owed him, and he is obligated to lend to him again.

This what it means “he shall not be to him like a lender” - even though he is not actually claiming from him, nevertheless, he should not appear as if he is lending to him by refusing to lend to him again, but rather he should forgive the first loan if the poor person does not have money to repay it, and lend to him a second time. And therefore it now says that “you shall not impose upon him interest”, because since he is obligated to lend to him a second time, he should not say to him "You also owe me from before, and if I lend to you again, at the very least you should pay me interest", because also this the Torah forbids.

Now, the Midrash had a difficulty with the posuk “Good is the man who is gracious and lends”, because these two things are contradictory - because ‘gracious’ implies giving for free, as Chazal say in many places, whereas a lender implies that he intends that the borrower should repay him. If so, how can one be both gracious and a lender? Also, it is not clear how the judgement which is mentioned in the end of the posuk - “who conducts his affairs with judgement” - is relevant here.

But it is well known that the way a person conducts himself, Hashem conducts Himself towards that person. It is also well known, that a person is required to cling to the traits of Hashem. Like Chazal taught, that just as Hashem is gracious, so too you should be gracious, and so on. Now, Hashem bestows good on a person in order that he will be able to do Hashem’s will, and to observe Torah and mitzvos. Thus, because of this goodness that he receives, a person is obligated to Hashem to observe Torah and mitzvos, and so if he transgresses the Torah, then he has not yet paid his obligation to Hashem, and so it would be fitting if Hashem would not bestow upon him any further goodness. This is what people are accustomed to do, that if someone is obligated to his friend and does not repay him, his friend will not lend to him again. But Hashem forgives the first 'loan' and lends to him afresh, in order that he might still repent his ways. Therefore, since Hashem conducts himself in this fashion, a person is obligated to conduct himself the same way, and thus he will merit that Hashem will continue to forgive the first and lend to him anew.

This is what the posuk in Tehillim is saying, “Good is the man who is gracious and lends”, that the reason why he is called good is because he is gracious and forgives that which the person is already obligated to him and gives it to him as a free gift, and lends to him again. Thus he “conducts his affairs with judgement”, with the judgement of Hashem. With the same rule the Hashem uses with a person, forgiving the first 'loan', so too this person conducts himself and forgives the earlier loan - this is a good man. And since there is no one who is not obligated to Hashem, everyone is obligated to conduct themselves this way. This is the meaning of the Midrash.

What is the consequence of not lending money to a poor person.

(22,24) When you lend money to My people, to the poor person with you, you shall not be towards him as a lender; you shall not impose interest upon him.

It says further in the Midrash, that this posuk is explained by the posuk in Koheles (5,12) “There is wealth kept by its owner for his detriment”. It seems that the Midrash had a difficulty with the wording of our posuk “the poor person with you”, the words ‘with you’ seem superfluous and have no apparent explanation.

Therefore, the Midrash explained that the words ‘with you’ refer to the money. That is, “if you lend to a poor person”, then “with you” will remain the money - Hashem will not take it from you. But if you do not lend to the poor person, then the money will not remain with you. And the Midrash brings a proof to this, that “there is wealth which is kept by its owner for his detriment”, that his wealth will harm him. That by not giving from his money to a poor person even though he has the ability to do so, he will lose all his wealth, and he will not be able to exist.