וְאֵלֶּה הַמִּשְׁפָּטִים “And these are the judgments.” And in this week’s Torah portion, Mishpatim, there are many judgments, or commandments — 53 to be precise. Most of the laws in this week’s parsha are in the category of mitzvot “bein adam l’chaveiro,” between people. There are laws relating to prosecuting capital cases, and there are laws that form the foundation of tort law, the rules regarding what happens when someone damages someone else’s stuff or person. There are also ritually related laws, such as one much abused in the Inquisition: "you shall not suffer a witch to live," and an affirmation of the prohibition on idol worship. Additionally there are laws about holidays and laws about food.
There is one law in particular I want to focus on this morning:וְכִי-יִפְתַּח אִישׁ בּוֹר אוֹ כִּי-יִכְרֶה אִישׁ בּר וְלא יְכַסֶּנּוּ “if a man opens a pit or digs a pit, and does not cover it, and an ox or donkey falls into it, the owner of the pit shall pay (Exodus 21:33-34).”
There are many pages of Talmud dedicated to understanding this law in greater detail. The rabbis understand that even though it says man, the law includes women. Since the verse specifies if a man opens or digs a pit it’s understood to exclude responsibility if a person’s ox dug the pit. And, as we would expect from a simple reading of the verse, if a person covered the pit and an ox or donkey fell into it, he is exempt from paying.
Sefer HaChinuch teaches something that would certainly seem logical to us, which is that this law applies not only to a pit in particular, but to any kind of hole in the ground that a person might dig, such as a ditch or cave. Chinuch says the pit was mentioned specifically to teach us that it has to be something deep enough that there is an assumption that falling into it could cause death, and that depth is 10 tefachim, about three feet.
Rashbam teaches that inconvenience is no excuse for ignoring this mitzvah. He teaches that even if you’re actively working in the pit every day, when evening comes and you finish your work for the day, even if tomorrow you are coming back to dig some more, and it’s a bother to cover it every day, you still have to cover it.
Rambam teaches limits to the law. He teaches that if you covered it with a cover strong enough to support oxen, and some camels came and walked on it — camels being heavier than oxen — and damaged it, if you live in a place where camels are rarely seen, you’re exempt from liability if an ox subsequently walks on it and falls in.
In the Talmud, in fact, these two verses become the basis for an entire category of damages, called "Pit" (the other categories being “Tooth,” “Foot,” and “Fire”). The category of Pit includes anything that is in your control, that can ordinarily cause damage, and does not move around. The rabbi Shmuel maintains that any kind of public nuisance comes within the scope of the law applicable to this category of Pit.
From this verse dealing with pits and oxen, we learn an important fundamental principle call: if you create a public hazard, you are responsible for protecting the public. An extension of this concept would include a requirement to shovel your sidewalks after a snowstorm. Even though you didn’t cause the hazard, it is an area that is in your control, and can cause damage.
We are not allowed to say "well, people should be careful where they let their oxen go wandering around”—or when they go for a walk and there’s snow on the ground. We have a responsibility to protect others and their property from hazards that are under our control.
But more than just learning a fundamental principle in tort law, and in addition to teaching us about our responsibilities to other people, there are spiritual messages that we can learn from these two verses.
Ibn Ezra teaches that our verse, "if a man opens a pit, etc.." teaches us that God does not want an animal to die for nothing. It’s one thing for an animal to die serving the needs of man, for example, to serve as food or a sacrifice. But God deplores waste.
The Zohar brings a very interesting teaching on this passage from the Torah. “R. Judah cited our verse: “And if a man shall open a pit, or if a man shall dig a pit… the owner of the pit shall pay, etc.” “If that man,” he said, “has to make good, how much more so one who brings the whole world into disfavor by his sins.”
To understand this teaching, we have to start by remembering the worldview of Kabbalah, of Jewish mysticism. According to Kabbalah, all of our actions are of cosmic significance. When we do a sin, we do harm to the world. When we do a mitzvah we bring healing to the world. The person who has opened up a pit only caused damage unintentionally. The assumption is he did not dig a pit in order that an ox would fall into it, rather, he dug a pit for some other purpose and an ox accidentally fell in. Even though the damage was unintentional, he is still responsible to make good the damage, as the Torah says "the owner of the pit shall pay." So the Zohar is telling us that if someone who causes damage unintentionally, like the person who opened a pit, has to make good the damage he did, all the more so should someone who brings about damage through an intentional action, like sinning, have to make good the damage he did. To do a sin damages the whole world because it blocks the flow of Divine light from reaching us.
So Rabbi Judah continues, and says “And I do, indeed, find it strange, that having brought the world into disfavor a man can make restitution by penitence, as Scripture says: WHEN A MAN OR WOMAN SHALL COMMIT ANY SIN… THEN THEY SHALL CONFESS THEIR SIN… AND HE SHALL MAKE RESTITUTION, ETC. The truth, however, is that through man’s penitence the Almighty Himself, as it were, rectifies on high the wrong committed, and thus the world is put right again.”
Rabbi Judah is teaching us that repentance is so powerful, that God loves repentance so much, that when someone does teshuva, repentance, God Himself fixes the damage and the world is made right.
Rabbi Judah’s colleague, Rabbi Isaac responds to that teaching, and says "One sinner in the world brings about the destruction of many. Woe to the sinner, woe to his neighbour! We see this in the case of Jonah. Through his refusing to carry the message of his Master, how many people would have been destroyed on his account in the sea! So they all turned on him and carried out on him the sentence of sea-drowning, whereby they were all saved. The Holy One, blessed be He, however, had mercy on him and so brought about the deliverance of multitudes of people. This happened after Jonah returned to his Master out of the midst of his affliction, as we read: “I called out of my affliction unto the Lord, and he answered me” (Jonah II, 3).”
As Americans, we are very tuned in to the idea of individual responsibility. Unconsciously, we even apply this in the realm of religion. We assume that if you do a ritual sin it’s just between you and God. Similarly we assume if you do a sin against another person, it’s just between you and that other person. But what Rabbi Judah is teaching us when he says ““If that man (who opened a pit), has to make good, how much more so one who brings the whole world into disfavor by his sins” is that sins are not just between you and God or between you and one other person, but rather that sins damage the whole world.
This is also alluded to elsewhere in the Torah. In the second paragraph of the Shema, which we recited silently earlier this morning, we said “וְהָיָה אִם-שָׁמעַ תִּשְׁמְעוּ אֶל-מִצְוֹתַי אֲשֶׁר אָנכִי מְצַוֶּה אֶתְכֶם הַיּוֹם And if you will diligently keep my commandments that I command you today … then I will give you the rain of your land in its due season, the first rain and the latter rain, that you may gather in your grain, and your wine, and your oil.” The English translation loses the fact that in the Hebrew original it is written in second person plural: if "you all" will keep my commandments. The blessings of God either fall on us or are withheld from us not as individuals, but as a community.
And this really makes sense. One person alone following the rules will not make for a good society. I’m sure there are many good, law-abiding people in Iraq. But there are so many sinners wantonly spilling blood, that the country and society are completely ruined for everyone else. It’s like the story about the guy on a wooden boat who pulls out a drill and starts drilling a hole right under his seat. The other horrified passengers start protesting, and the guy with the drill says "what are you complaining about, I’m only drilling under my seat!"
May God help us to remember that as precious as our individual freedoms are, we really are our brother’s keeper.