MISHPAT vs.

TZEDEK

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HOW DO YOU DEFINE JUSTICE

introduction

>> Justice only has

value when it is lived
out in daily life. <<

Judaism weaves the ideal of justice into the very fabric of creation.
Like all ideals however, justice has value only when it is lived out in
daily life. In many cases the pursuit of justice comes at a price, and
each individual needs to determine whether he or she will pay that
price. Classical Jewish sources have provided Jews with guidance on
such matters throughout the generations. In this chapter and those
which follow, we will probe the meaning of some of these texts.
The Hebrew word tzedek is usually
translated as justice, yet, like
many translations, this one is not
completely satisfactory. There
are nuances of meaning that
are important to understand
as Hebrew has several words
that are related to the concept
of justice. In this section we
will use the word tzedek in its
Hebrew form and use a variety
of texts to explore the richness of
the concept without restricting it into
a single English word.
The framing exercise and six texts presented below explore Jewish
perspectives on the idea of justice.
TEXT 1: Betrothal (Hosea, Ch. 2)
TEXT 2: These are the Mishpatim (Exodus, Ch. 21)
TEXT 3: Liability (Mishna, Bava Kama 8:1)
TEXT 4: When Breaking the Law is Keeping the Law (Babylonian Talmud,
Sanhedrin 46a)

TEXT 5: Beyond the Letter of the Law (Babylonian Talmud, Bava Mitzia 83a)
TEXT 6: Right of Way (Babylonian Talmud, Sanhedrin 32b)

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EXERCISE

> Ask the participants to define justice.

> Is it a system of laws? A way of behaving? An attitude? All of the above?

Mishpat/Tzedek

>

Framing

> Who is responsible for justice? Preserving it? Defining it? Enforcing it?

> Ask the participants to talk about the last time they were involved in an act
of justice.
You may get answers which anticipate the paragraph below, indicating the two
different forms of justice: tzedek and mishpat. If not, acknowledge the answers
you get, and then ask the participants to keep their minds open for an addittional way to understand the concept of justice.

Text Exploration
TEXT 1

Betrothal

A traditional siddur (prayerbook) provides an interesting passage from the

book of Hosea that is supposed to be recited when a Jew puts on a set
of tefillin. The Jew who says these words does so while tying the bands of
the tefillin around his or her fingers, transforming the bands into
a celestial wedding ring. In the passage, it is God who speaks these words
to the Jews. In the prayer book, it is the Jews who speak these words back
to God.

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I betroth you to me forever; I betroth you to me in tzedek (righteousness)
and in mishpat (justice) and in chesed (kindness) and in rachamim (mercy).
I betroth you to me with emunah (faith); and you shall know God.
Hosea 2:21-22

t Why, of all the concepts and sentiments and values that could claim a
place in this pledge of Jewish commitment, do you think our tradition
places the concept of justice at the center?

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t What is the common thread among the five characteristics listed?

Why do you think they were chosen? Are there others that you would
add if you were rewriting the text?

What the Text Means to Me

s Many Jews recite this passage daily. What could be the impact of
saying these words every morning?

s Do you have anything that you say daily or as part of a routine? What
is it? Why do you say it so often, so regularly? What does it do for
you? If the recitation is said by others at the same time, how does
that affect the group?
Participants can imagine the pledge of allegiance, singing the national
anthem before ball games, a team cheer or chant, an honor pledge before
a test, ha-motzi (the blessing before eating bread) and the like. Explore
with them the impact of saying something by rote in a prescribed moment.
What impact might such an affirmation have on a person when regularly
recited? While participants answers will vary, you may want to tease
out the idea that this type of ritual can serve as a behavioral compass,
reminding individuals of the core values which they would like their lives to
represent. Regular affirmation of an idea is likely to have that idea become
part of a persons internal belief structure. Whereas individuals may agree
with a statement on an intellectual level, the idea takes on deeper signnificance if it is regularly expressed, especially if done in a public forum.
Be prepared for a student to offer the legitamate challenge that making
something routine or reciting something by rote actually strips it of meaniing. You may choose to address this type of response by probing further,
exploring how routine actions and deep intentionality can coexist.
TEXT 2

These are the Mishpatim

Lets look at an idea called mishpat. The word mishpat is drawn from the
same root as the word to judge []. The following text, found in the
book of Exodus, is from the first body of legislation presented in the Torah.

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These are the mishpatim that you shall set before them He who fatally
strikes a man shall be put to death. If he did not do it by design, but it
came about by an act of God, I will assign you a place to which he can
flee. When a man schemes against another and kills him treacherously,
you shall take him from My very altar to be put to death
When men quarrel and one strikes the other with stone or fist, and he
does not die but has to take to his bedif he then gets up and walks
outdoors upon his staff, the assailant shall go unpunished, except that he
must pay for his idleness and his cure
If damage ensues, the penalty shall be life for life, eye for eye, tooth for
tooth, hand for hand, burn for burn, wound for wound, bruise for bruise.

Mishpat/Tzedek

Exodus, 21:1, 12-14, 18-19, 23-24

t Leaving aside your personal opinions about capital punishment, what

distinction do you think the Torah is making between premeditated
and accidental killing?

t How does the text understand an individuals responsibility for any

damages caused?

t Based on your reading of this text, what is your understanding of the

term mishpatim? What principle of law or social value is expressed
through the Torahs instructions?

The Torah here indicates that there is an important distinction between

a premeditated murder and an accidental killing. At first glance, the outccome of ones actions do not appear as significant a factor in determining
punishment as does the motivation behind those actions. If one kills uninttentionally, then the system provides a form of protectiona designated
area of refuge. In contrast, a planned murder is severely punished.
The text expresses the idea that a person is responsible for the outcome
of his or her actionsan eye for an eyeregardless of motive or any other
circumstances.
Mishpatim then can be understood as powerful principles of law which
apply uniformly for all individuals to uphold a standard of justice and fairnness in the world. A persons personal circumstances or socio-economic
status does not give them any special consideration. Mishpatim represent
the idea of retributive justice or equal justice under the law.

What the Text Means to Me

s Do you agree with this approach to justice?
s Do you think it reflects an enlightened ideal or a primitive
perspective?

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s What might alternative approaches look like?

s Is there a place for mishpat in the way contemporary society is
organized?

TEXT 3

Liability

The rabbis of the Mishna, relate their own understanding of the value of
mishpat:

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Whoever wounds his fellow is liable for five things: for damage, for pain, for
healing, for loss of time, and for shame.
For damage, how? If one blinded anothers eye, cut off his hand, broke
his foot, we consider him as if he were a slave sold in the market, and we
appraise how much he was worth [before the injury], and how much he is
now worth [after he was injured].
Pain? If someone burned him with a spit, or with a [white-hot] nail, even
on his fingernail, a place where it produces no wound, we assess how much
a person in his situation would be willing to accept to undergo such pain
[Alternatively, how much would someone pay to avoid this type of pain as a
punishment].
Healing? If one struck another, he is obligated to heal him. If swelling
appeared on it from a result of the blow, he is liable; [if swelling appeared]
not as a result of the blow, he is exempt. If [the wound] healed and opened
again, he is obligated to cure him [a second time].
Loss of time? We consider him as if he [had an easy job, like] the caretaker
of a cucumber field, since he has already paid him compensation for his
hand and compensation for his foot.
Shame? Everything is in accordance with the person causing the indignity
and the insulted party. If one insults a naked person, if one insults a blind
person, or if one insults a sleeping person, he is liable, and if a sleeping persf
son caused the indignity, he is exempt. If one fell from a roof and injured and
shamed [someone], he is liable for the injury and is exempt for the shame, as
it is written, And she puts forth her hand, and takes him by the secret part
(Deuteronomy 25:11) he is not liable for shame unless he intended.
Mishna, Bava Kama 8:1
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t What, if anything, surprised you about this text? Why?

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Mishpat/Tzedek

t According to this Mishna, how do you think the rabbis understood

the concept of mishpat?

t Do you think their interpretation is true to the values expressed in the

book of Exodus?

t How is compensation for shame treated differently than physical

and monetary damages?

t What is the benefit of having the laws determine how a wrong can
be righted?

The rabbis of the Mishna refuse to read Exodus 21 literally: they choose to
understand, an eye for an eye, as a formula for monetary compensation.
The rabbis realized that a law which enforces a literal interpretation of meassure for measure does nothing to improve society or increase the amount
of good in the world. They also boldly articulate five dimensions of injury for
which one must be compensatedextending the scope of ones responsibbility far beyond what is evident from a simple reading of the biblical text.

What the Text Means to Me

s Did you ever make a mistake or do something wrong and try to make
up for it? What did you do? What did you do to make things right?
How was it received?

s Did someone ever wrong you and then try to make up for it? Did you
feel satisfied at the end?

s What difference do you think it would make in the situations you

have reflected upon if your behavior and the behavior of others was
strictly governed by these principles? Is this ideal? Is it realistic?

TEXT 4

When Breaking the Law is Keeping the Law

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Rabbi Eliezer ben Yaakov said: I have heard that the court may pronf
nounce sentences even where not [warranted] by the Torah; yet not with
the intention of disregarding the Torah but [on the contrary] in order to
safeguard it.
Babylonian Talmud, Sanhedrin 46a

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t What is the difference between the letter of the law and the spirit
of the law?

t Can you describe a situation in which breaking the law or ignoring

the law is, in fact, the best way to keep the law?

t Can you imagine a legal system which does not allow such lenienct
cies? What would that be like?

What the Text Means to Me

s Did you ever have to do something that seemed wrong but nonett
theless was the right thing to do?

s How do you know when the spirit of the law should override the
letter of the law?

s Is Rabbi Eliezer ben Yaakov talking about mishpat or another form of

justice? Explain.

TEXT 5

Beyond the Letter of the Law

Consider the following text which explores the practical application of taking
liberties with respect to specific social regulations in order to live according
to societys core values.

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Some porters broke a barrel of wine belonging to Rabbah Bar Bar
Hanna. Rabbah seized the porters garments [in payment for his loss
incurred by them]. The porters went and complained to Rav. Rav told
Rabbah: Return their garments. Rabbah said: Is that the law? Rav
responded: No. But follow the good way (Proverbs 2:20). The garmf
ments were returned, but the porters observed, We are poor men. We
worked all day and we were not paid. Are we to get nothing for our
labors? Rav ordered Rabbah to pay the porters. Rabbah asked: Is that
the law? Rav replied, No. But be sure to walk on the paths of righteousnf
ness. (Proverbs 2:20b)
Babylonian Talmud, Bava Metzia 83a

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t Who is right?
3
Mishpat/Tzedek

t Why does Rav rule the way he does? Upon what basis?
t Who is on the side of mishpat here, and who is on the side of tzedek?
t Do the porters deserve the kindness of Rav? Is that important?
t Is Rav referring to two different standards when he instructs Rabbah?
Why? Which one do you find more compelling?

What the Text Means to Me

s Who do you support: Rabbah or Rav? Why?
s What would you have done if you were Rabbah?
TEXT 6

Right of Way

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Rav Ashi expounded upon the verse, Tzedek, tzedek you shall pursue
(Deuteronomy 16:20): The first [mention of tzedek] refers to a decision
based on strict law; the second, to a compromise. How so? For example:
Where two boats sailing on a river meet, if both attempt to pass simultf
taneously, both will sink; whereas, if one makes way for the other, both
can pass [without mishap]. Likewise, if two camels meet each other while
on the ascent to Beth-Horon; if they both ascend [at the same time]
both may tumble down [into the valley]; but if [they ascend] after each
other, both can go up [safely]. How then should they act? If one is laden
and the other unladen, the latter should give way to the former. If one is
nearer [to its destination] than the other, the former should give way to
the latter. If both are [equally] near or far [from their destination], make
a compromise between them, the one [which is to go forward] compensf
sating the other [which has to give way].
Babylonian Talmud, Sanhedrin 32b

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t What is the right thing to do in these situations? Who has the right
of way?

t Why should the one boat or camel cede to the other if they have the
same right as the other?

t What do they gain?

What the Text Means to Me

s Who do you think is better? The one who yields his right of way (and
goes second) or the one who claims his (and goes first)?

s What would you do if you were the camel driver?

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Consider the following case studies:

3

This organization almost awarded cost of living increases but has decided
it cant do that for the year ahead. One person suggests that everyone be
given a 2% raise that year, half of the 4% standard federal-recommended
cost of living increase (COLA). That seems the right way to gotreating
everyone the same.

Another person said that is not fair: management will be the winners, for
2% of their salaries is much larger than 2% of maintenance staff and
secretary salaries. The person who proposed the 2% raise argued that
nonetheless, each household has its share of on-going expenses. That
is, those with larger incomes have lifestyles that incur larger expenses
and those with smaller incomes have lifestyles that accommodate lesser
expenses. A 2% increase in relation to each household is therefore a fair
and just way to go.

Case Study

An organizations budget must be cut by 5% and the management

team is exploring ways to do so. Jobs and salaries will almost surely be
affected.

Mishpat/Tzedek

The Cost of Living

Opponents to this position argued that maintenance, blue collar and

secretarial staff often live much closer to the economic brink, often with
little savings. They have fewer discretionary expenses that can be cut, and
little capacity to get loans to tide them over. Therefore, the organization
should offer a full 4% cost of living increase for the lower-echelon staff
and a 2% increase for the higher. (Even with this formula, the total COLA
for the higher staff is 5 times as great as the COLA for the lower staff.)
As a group, outline the arguments on both sides and debate the issue.

How do the concepts of tzedek and mishpat help us understand the

competing approaches to this issue?
What do you think the organization should do?
Is there a right answer to this? Is there a Jewish answer?

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Fairness in School Funding

Case Study

In many states today, local schools are funded by local property taxes.
(That is, each home owner pays a tax based on the value of his or her
property. That money gets funneled back into the local school district.)
This means each household can choose the quality of education that the
children receive by choosing where to live. It also means that the more
prosperous the neighborhood, the better funded is its school. School districts in wealthier neighborhoods often spend thousands of dollars more
per child than school districts in economically depressed neighborhoods.

Is this a fair system? Why or why not? Would you define fairness
differently if you lived in a wealthy neighborhood than if you lived in a
poor one?
In the past twenty-five years, at least 2/3 of the states in this country
have determined that this system is unfair, and have struggled to fix it.
One solution was to pool all the states property taxes in one pot and
dole out an equal amount of dollars per student throughout the state.
That sounds good because it makes everyone equal.
Is this mishpat, tzedek or neither?
Read the following paragraph:
I am not convinced that spending the same amount on each child is the
fairest approach to school funding. The truth is that parents spend considerably different amounts on their childrens educationwhether in public
or private schoolsdepending on income. Providing the same amount
of state and local aid to the child of wealthy parents as to poor parents
simply exacerbates the gaps and ignores the fact that one child is likely
to have more unmet needs than the other. I am more in favor of providing whatever level of funding is adequate for each child to meet his or
her needs and to attain high standards than I am to providing the same
amount to each child, rich or poor.
(Mr. Michael Casserly of the Council of Great City Schools)
Is this mishpat, tzedek or neither?

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TZ E D E K, TZ E DAKAH,
& CHESED

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4

introduction
We explored two kinds of justice in a previous section. Mishpat is
even-handed or retributive justice, that is, justice by the book. Tzedek
is situational or distributive justice, that is, justice that is tailored to
respond to the particular circumstances of a particular situation, especially those that lead to social, economic and political inequities.

>> Although it is
often translated as
charity, tzedakah is
not equivalent to
charity. <<

Mishpat is generally about assessing behavior and determining how

to treat the aggrieved and the offender equally. Tzedek is more about
creating a system for the fair distribution of goods, services and
opportunity on this earth. In this section we will further
explore the idea of tzedek as we compare it to the more
popular concept of tzedakah. The two terms share the
same root, tz.d.k., meaning the right thing to do.
Although it is often translated as charity, tzedakah
is not equivalent to charity. Charity comes from the
Latin word caritas, which means love. The concept
of charity in English is considered voluntary because it
comes from the heart. Christianity teaches that charity is something which people should give when their
hearts move them to do so.
Thus, even though we emphasize in this chapter the distinction between tzedek and tzedakah, we should not lose sight of
the significance of their semantic connection. These two concepts are
distinct but they are also closely related in that tzedek and tzedakah both
represent modes of responding to injustice in the world.
The framing exercise and five texts presented below expand our understanding of justice and examine Jewish perspectives on responding to
injustice in our world.
TEXT 1: Eight Levels of Tzedakah (Maimonides, Laws of Gifts to the Poor 10:7-14)
presents a classic formulation of the hierarchy of giving and makes the claim
that certain types of giving are valued over others.
Our conversation continues with an examination of the concept of chesed
which similarly describes a response to human needs. Chesed, however, is not

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