Perashat Mishpatim: Divine Punishment

By Mr. Victor Bibi Feb 07, 2018 02:02 PM Mishpatim

I think it safe to assert that the main purpose of biblically ordained punishment is to rectify the spiritual blemish caused by the particular infraction. Let us examine three prescribed penalties that are expressed biblically and/or thru Talmudical exegesis from our parasha. We will try to show how the intent of each "punishment" is not merely to be identical with or equivalent to the offense but is an essential step in its rectification. 

The first is one of the four methods of capital punishment known as Sekilah or Stoning. The second is the imposed punishment of Makot or flogging. The last is the biblically ordained punitive damages for one who steals and then sells or slaughters an ox or sheep. 

The Tikun of Stoning

Love your neighbor as yourself is interpreted in the Talmud (Sanhedrin 45,52 etc)  as applying even to the condemned criminal. The Bet Din is instructed to give him the most humane death possible. This means that we search out the most efficient method to rectify his transgression. There are 18 overt biblical transgressions whereby the offender has caused a death or "descent of the spiritual worlds" from their lofty state. This descent is rectified by a guilty verdict and the court imposed punishment of Stoning.

A stoning place was designated from which he was to be pushed down to his death (San 6:4).  This was not to be too high or low. The rectification would be effectuated by the witnesses - pushing the perpetrator off a precipice of a specific height. The physical descent of this body below is to parallel his causative action or transgression in the spiritual worlds. This would effectively associate his person with the fall and with his thoughts of repentance allow an elevation of the worlds which he caused to descend. This is not unlike our required meditation when saying Tahanun (LeDavid). 

The Tikun of Flogging 

The punishment of (39) lashes is usually associated with violations of negative biblical injunctions. In the meditations of R. Shalom Sharabi (Rashash) the spiritual blemish is associated with a descent and concealment of holiness expressed as certain divine names. More specifically from the level know as Daat Tahton to the spiritual shoulders and chest. Hence we know from the Talmud that Makot were administered with a whip made of calfskin on the bare upper body of the offender - one third on the chest & two additional sets on the upper back (near the shoulder).

The offender stood in a bowed position with the one administering the Makot standing on a stone above him. It is important to note that verses (Makot 3:12) accompanied the blows and together allowed for the holy sparks as manifest in divine names to ascend from the spiritual chest and outer shoulders back to their former position above in the spiritual sphere. 

Peculiar Ruling of Four or Five Time Payment

In parashat Mishpatim (21:37) the Torah issues a peculiar ruling regarding theft. "If a person steals on ox or sheep and then slaughters it or sells it, he must repay five oxen for an ox and four sheep for each sheep." In order to rectify the spiritual damage he caused he is divinely required to pay 4 times for a sheep and if an ox he would be required to pay 5 times. Why is this case unique? What is particular about these animals that the Torah singles out this exclusive multiple penalty? 

R. Akiva and Rava Break the Code

We have a double teaching of Tanna and Amora in Baba Kama (67) that appears to break the code to our quandary. "It was taught: R. Akiva said, Why does scripture ordain a four and five payment for one who slaughtered or sold? Because by doing this he has rooted himself in the sin. Rava says because he has repeated the sin." The simple interpretation is that they are referencing the compounding effect on the original transgression of theft by selling or slaughtering the stolen animal.

Ok, but why only are these animals included in the injunction? What is the difference if a watch was stolen and sold - In which the criminal would only incur a double penalty as on all cases of thievery?  Based on the commentary of R. Moshe Alshikh I would like to suggest that possibly R. Akiva is suggesting that one who steals and then sells or slaughters an ox or lamb causes a spiritual blemish rooted in the sale of Yosef. Rava in my opinion goes even further and asserts they the perpetrator is actually repeating the sin of the brothers. 

Some Brothers Stole and Sold "An Ox" While Others Considered Him a "Lamb"

R. Moshe Alshikh asserts that the brothers were divided in that each retained a unique relationship with Yosef. One group saw him as the prototypical damager ; in this relationship between the 5 sons of Leah (not including Reuven who was not privy to the sale) Yosef is compared to a stolen ox. The Rabbi writes that their perception of him in this manner is reflected in Moshe's description of Yosef as that of an ox in his blessings of the tribes before his death. (Devarim 33:17).

The second group viewed Yosef in a form of a non aggressive sheep. This second relationship includes the four sons of Zilpa and Bilha who spent time with him "grazing with the sheep". Both however were guilty of stealing Yosef and then selling him; returning to Yaakov only a garment dipped in the blood of a kid. In the words of R. Alshikh "some of his brothers viewed him as a dangerous ox while others as a harmless sheep; nonetheless they all participated in selling him." The Torah mentions here that whether a man steals an ox or a sheep i.e. either because he considers the animal dangerous or because he considers it as harmless he is nevertheless liable to a multiple penalty. 

The Blemish Precipitates the Correction

So when a person commits such a transgression he "roots" himself or "repeats" the original transgression of the brothers. When one willfully steals an ox as the five sons of Leah, and then sells this ox to a third party his transgression is so spiritually entrapping that it requires a five fold restitution to rectify the spiritual blemish which is akin to the sale of Yosef. Likewise if one steals and sells a sheep to a third party his transgression requires a four fold restitution as it is on par with the transgression committed by the four sons of Zilpa and bilha against Yosef. 

Must be Accomanied by Teshuva

The common thread that must accompany all divine or court imposed punishment are words and thoughts of penitence in the heart of the perpetrator. This along with the suffering will reestablish all that was blemished to be set right once again. Hence we find in the laws of repentance that penitence often must be combined with suffering or even death. A person should always entertain these thoughts even if beset with suffering sent down from above. Through this - we can properly correct our misdeeds and hence rectify the spiritual worlds we had unwittingly blemished.