Mishpatim: The Power of Life and Death

Copyright 2015 Neal Joseph Loevinger

Torah Portion: Mishpatim

You shall not side with the mighty to do wrong. . . . . .   (Shemot/ Exodus 23:2)

Good afternoon!

The Torah portion Mishpatim is mostly civil and criminal laws, along with instructions about how to apply those laws. Some of the laws and instructions are oriented toward ordinary citizens, while some, like the first verses of Chapter 23, seem to be for the regulation of judges and officials. The context of verse 2, quoted in part above, seems to be fairness in judging, forbidding the judge or official from taking the side of either rich (because of influence) or poor (because of sympathy) in a dispute. Rather, according to what seems to be plain meaning of the text, the law must be applied fairly, without regard to the social standing of either plaintiff or defendant.

So far, so good, and would that we lived in a society that truly applied its laws fairly, as is, I believe, our American ideal. On the other hand, there’s an interesting interpretation of the verse above that gets into the details of the ancient Jewish judiciary, which I think will in turn impart an important moral challenge. According to some interpretations, “don’t side with the mighty” really means “don’t side with the majority,” meaning in turn, that a judge on a panel of judges must speak up, even against the majority opinion. Sforno goes on to say that “don’t follow the majority to do wrong” means don’t be the tie-breaking vote in a capital punishment case, because if a criminal is condemned by a one-vote majority, it’s the same as being condemned by a single judge, which is not part of the ancient Jewish judicial system.

This strikes me as a profound recognition of the humbling and awesome power of life and death inherent in judicial, political and military systems, a power which cannot be held by a vote of just one, lest that one judge be misguided, biased, or influenced by external factors. Many contrasts with modern life might be made, but one in particular that comes to mind is the current use of computer algorithms to determine drone strikes in the war against terror groups. These “signature strikes” are often determined by computer analysis of certain behaviors, which indicate a possibility of terrorist affiliation. Note, however, with some of these drone strikes, we have no idea who we are killing, or if they have any terrorist links at all, or how many civilians are killed along with any possible enemies.

Counter-terrorism policy will be debated by experts, but I hope all Americans engage the moral questions inherent in the actions done in our name. The deliberation and clarity needed to condemn a criminal in the days of the ancient rabbis stands in stark contrast to a world in which computer programs mete out life and death in a flash, on the other side of the world, blowing up people whose names we may never know. “Do not follow the majority” became “do not let a bare majority decide to kill;” I wonder what the sages would say about letting software make life-or-death decisions without much human input at all? Arguments can be made pro or con, but the question cannot be avoided.

Shabbat Shalom,


The views expressed are my own and do not reflect that of Vassar Brothers Medical Center or Health-Quest.

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