Mishpatim: The Code of Law that structures Human Rights in its very bones, or Justice and Judges must uphold the moral imperative.

Mishpatim 2022

Parashat Mishpatim continues the process begun at Sinai, explicating and evolving the laws that will govern this nascent Israelite society. It begins with the laws that govern the indentured Israelite servants, and then moves on to the laws of damages- beginning with the person who either intentionally or unintenionally causes damage, and then dealing with the damage that is caused indirectly or by the property of people. The parasha then continues into other areas.

On first reading, it seems as if the laws contain a jumble of different areas and contexts with little logical order. Rabbi Elchanan Samet however has a different view: “Our question about the organization of the parasha of damages is based on the assumption that the order should follow the categories of the agents which CAUSE damage. Such a categorization is appropriate from a legal perspective, since one’s level of responsibility for the damage determines whether and how much restitution he much pay.  Our questions, however, disappear when we realize that the Torah orders this section based on the categories of those who are DAMAGED, not those who CAUSE damage”.

(https://etzion.org.il/en/tanakh/torah/sefer-shemot/parashat-mishpatim/mishpatim-laws-damages-declaration-human-rights)

In other words, the Torah has an organising principle here not just of legal categories, but of societal values. It begins with the value of human and then animal life, moves onto plant life and the sustaining ability of agriculture for society, and only then moves to general property or to money.  By using this principle, we are reminded powerfully that all human life and wellbeing, )closely followed by animal life and well being) is de facto more important to sustain and to protect than property or wealth.

On this organising principle, Judaism builds an edifice of understanding and provides a moral compass for us and for all of society. One cannot claim for example that the poor deserve less than the rich, that refugees have fewer rights to security than those comfortably living in the land, or that the rights of animals to life and welfare can be negotiated (or worse) for monetary profit.

Mishpatim has often been described as a foundational text for our society, a text which creates an environment built on laws that are applicable to everyone, that have authority, that addresses a broad variety of human experiences. The view that the organising principle is not only the legal sysem regulating human action but actually the moral imperative to be particularly concerned about supporting the wronged person and getting justice for them is mind blowing.  We generally focus on the idea that it is clearly built on earlier codes, such as that of Hammurabi, and examine the differences between the two codes of law, but to change focus and look at how the code is structured to prioritise people’s humanity and well being, the care for all living creatures and for nature BEFORE considering the care for material wealth and possessions is to understand the biblical imperative to care for the world and its inhabitants even at the cost of any accumulation of wealth or other material power.

We cannot of course ignore the fact that the legal code is critical to keeping the moral code properly focused and working. It is law – good law that is made to help people rather than to oppress or constrain people – that keeps society safe. The very word “mishpatim” means “laws”, and it requires people who apply wisdom and compassion to interpret and wield these laws.

I have been thinking a great deal recently about my grandfather, Walter Fritz Louis Rothschild, whose career as a judge faltered and ultimately came to an end with the rise of the Nazis in Germany. We have a newspaper where the following is reported on 21st January 1933 under the heading “A Public Scandal” :

“Offener Brief an den Reichsjustizminister.

Wir berichteten bereits in unsere gestrigen Ausgabe über den öffentlichen Skandal am hiesigen Amtsgericht.  Der Führer der SA-Obergruppe 2, Lutze, hat jetzt folgenden offenen Brief an den Reichsjustizminister gerichtet:

Ein Einzelfall, der in der Bevölkerung Hannovers berechtigte Entrüstung und Empörung ausgelöst hat, gibt mir Veranlassung, mich an Sie zu wenden und ein Problem zur Sprache zu bringen, das dringend und umgehend der Bereinigung bedarf.

               Der Vorgang ist folgender:           Das Amtsgericht Hannover hat es für zweckmäßig befunden, in einer politischen Strafsache, die am Mittwoch, dem 18. Januar 1933 vor dem hiesigen Amtsgericht anstand, in einem Verfahren gegen 2 SA-Männer den jüdischen Amtsgerichtsrat Dr. Rothschild als Vorsitzenden herauszustellen.

               Die Vernehmung der Beklagten erfolgte von Seiten des Dr. Rothschilds in überaus provokatorischer und unsachlicher Form.

   Der Verteidiger der Angeklagten bezweifelte daraufhin die Unbefangenheit des jüdischen Vorsitzenden und wird von diesem in einer Art und Weise behandelt, die weit über das Maß des Erträglichen und Erlaubten hinausgeht. Das Gericht zieht sich zur Beratung zurück und erklärt dann den Antrag des Verteidigers als gegenstandslos.

               Herr Reichsjustizminister! Es dürfte auch Ihnen nicht entgangen sein, daß das deutsche Volk, soweit es die nat.-soz. Weltanschauung vertritt – und das sind rund 40 Prozent der Gesamtbevölkerung Deutschlands – die jüdischen Fesseln abzustreifen sich anschickt.

               Wir verbitten es uns, daß man Vollblut- und Halbblutjuden als Richter über deutsche Menschen einsetzt. Wir fordern, daß der verantwortliche Amtsgerichtsdirektor, der für den obengenannten Vorgang  die Verantwortung trägt, zur Rechenschaft gezogen wird.

               Ich hoffe, daß Sie diesem Appell in letzter Stunde die gebührende Beachtung schenken, ehe es an den Gerichten zu Auftritten kommt, die eine autoritäre Rechtspflege überhaupt in Frage stellen.

               Zu Ihrer Orientierung diene Ihnen, daß sich die hannoverschen Gerichte durch Herausstellung jüdischen Justizpersonals besonders hervortun. Ich nenne u.a. :

               1. den ersten Staatsanwalt Wolfssohn,

               2. die Richterin Alice Rosenfeld,

               3. den Amtsgerichtsrat Rothschild,

und empfehle Ihnen, die Genannten schnellstens in der Versenkung verschwinden zu lassen.

Der Führer der SA-Obergruppe II, gez. Lutze, M.d..R.”  [i.e. Mitglied des Reichstages.]

“Open letter to the Reich Minister of Justice.

We already reported in yesterday’s issue about the public scandal at the local district court.   The leader of SA-Obergruppe 2, Lutze, has now addressed the following open letter to the Reich Minister of Justice:

An individual case which has caused justified indignation and outrage among the people of Hanover has given me cause to address you and to raise a problem which urgently and immediately needs clearing up.

               The process is as follows:

               The District Court of Hanover has found it expedient to single out the Jewish District Court Councillor Dr. Rothschild as the presiding judge in a political criminal case which was pending before the District Court here on Wednesday, January 18, 1933, in proceedings against 2 SA men.

               The questioning of the defendants was carried out by Dr. Rothschild in an extremely provocative and unobjective manner.

   The defendants’ defence counsel then doubted the impartiality of the Jewish chairman and was treated by him in a manner that went far beyond what was tolerable and permissible. The court retires for deliberation and then declares the motion of the defence counsel to be without object.

               Mr. Minister of Justice! It should not have escaped your notice that the German people, in so far as they represent the National-Socialist worldview – and that is about 40 percent of the total population of Germany – are preparing to throw off the Jewish shackles.

               We forbid the use of full-blooded and half-blooded Jews as judges over German people. We demand that the director of the district court, who is responsible for the above-mentioned incident, be brought to justice.

               I hope that you will give this appeal the attention it deserves at the last hour, before there are any appearances in the courts that call the authoritarian administration of justice into question at all.

               For your orientation, please note that the Hanoverian courts are particularly prominent in singling out Jewish judicial personnel. I mention, among others:

               1. the first public prosecutor Wolfssohn,

               2. Judge Alice Rosenfeld,

               3. the district court judge Rothschild,

and I recommend that you let the aforementioned disappear as quickly as possible.

The leader of SA-Obergruppe II,

signed. Lutze, M.d..R.”     [i.e. member of the Reichstag.]

One can only imagine the arrogant confidence of the writers of the letter, who, unhappy that an incident where up to 30 SA (Sturmabteilung – Nazi paramilitary wing “Storm Detachment) men had set upon a man wearing a Reichsbanner badge in his hat (anti fascist/ liberal organisation of the Weimar republic) and beaten him up, were questioned robustly by a Jewish court judge and found to have a case to answer – felt able to demand that Jewish judges be removed from office.

One can only imagine the feelings of that judge  – my grandfather- writing his carefully worded and thoughtful 5 page response to the accusation, only to be removed from his role within a week of his rebuttal as the Nazis came to power and removed all Jews from their public roles.

My grandfather died as a result of the physical ill- treatment he received in Dachau shortly after the war. But my grandmother survived and on occasion she would reminisce with me. One day she told me of her overwhelming fear in the early thirties – I think it must have been around the time of this court case – as she tried to persuade her husband to leave the country. He told her “I can’t. If the judges leave then there will be no justice”.

By the time he realised that there would be no judges and no justice it was too late to leave. Countries had closed their borders to Jews, they and extended family were trapped.

Last week I lit a yahrzeit candle for him. This week we are mark the European Holocaust Memorial Day and we repeat the words “never again” and “Zachor – Remember” hopefully and desperately in the knowledge that since the Shoah we have seen people dehumanised because of their ethnicity or religion, we have seen people attempt to erase any memory and any learning from memory.

And this week we read parashat Mishpatim. We read a parasha where a society is created by laws. A parasha structured to remind us that every single human being is of value, every single human being is of equal value, and that value is paramount in how we organise our society.

If only our society followed the structure set out in parashat mishpatim. To value human life, animal life, the natural world. To care for them, to protect them, to nourish and sustain and honour them. And only after that to consider material wealth, profit, gains.  If only we had a system where the person damaged was the most important to consider, not the damage to property or wealth.

We are witnessing an assault by government on our codes of justice. We are witnessing legislation whereby if the government does not agree with the judiciary, they will overrule the judgments. We are witnessing long term underfunding of our system which is causing it to break down. We are witnessing a government that thinks the law is not for them to follow. We are living in dangerous times.

And I think of my brave and lonely grandfather saying to my fearful and anxious grandmother. “If the judges leave there will be no justice.”

Hannover Judges. My grandfather Landgerichtsrat Dr Walter Fritz Louis Rothschild third row from the front, fourth from the right

Tetzaveh: Avnei Zikaron, the stones of remembrance are all around us

The list of what the High Priest should wear when carrying out his duties is long and detailed. The Hoshen (a breastplate); The Ephod, a kind of tunic made with gold, blue, purple and scarlet, fine twisted linen threads. It would have two onyx stones, each engraved with six of the names of the tribes of Israel, and they would be embedded in a gold setting on the shoulders of the garment;  A gold frontlet to be worn on the forehead, with the inscription “Kodesh l’Adonai” (Holy to God); A fringed tunic, a headdress, a sash, and linen trousers. The Hoshen was fixed by chains to the shoulders of the ephod and carefully connected, the urim and tumim were placed within it, and twelve different precious stones arranged in four rows of three, one for each of the tribes of Israel.

The clothing was fringed, with pomegranates and golden bells around the hem of the robe so that it would make a sound when the High Priest walked in the sanctuary, and people would be able to hear him.

If all this sounds a little familiar, it is because we dress our scrolls in similar fashion. Tunics of rich materials, beautifully embroidered; crowns and bells – called rimonim, pomegranates, that tinkle when we carry it;  a breastplate – hoshen.

Several times we are told that the High Priest’s clothes are for honour and beauty – kavod v’tiferet. And we have taken from this the idea of adorning our synagogues and Sifrei torah for the same purpose – hiddur mitzvah – beautifying a mitzvah -being the principle behind the decoration of our ritual objects, about the three statutory meals on Shabbat, about creating an aesthetic in our lives that not only glorifies God but makes us more aware of the beauty of our world.

There is much of the language of the text that we don’t really understand:  – what exactly is an ephod? Why did the priest wear a gold engraved plate on his forehead? Why would having bells and pomegranates on the hem of his robe mean that he would not die? What really were the urim and the tumim? Where they objects of divination? How were they used and how does that fit into the ritual system being designed here?   There are so many opaque words and unanswerable questions in this text, but this year one particular expression caught my attention:

וְשַׂמְתָּ֞ אֶת־שְׁתֵּ֣י הָֽאֲבָנִ֗ים עַ֚ל כִּתְפֹ֣ת הָֽאֵפֹ֔ד אַבְנֵ֥י זִכָּרֹ֖ן לִבְנֵ֣י יִשְׂרָאֵ֑ל וְנָשָׂא֩ אַֽהֲרֹ֨ן אֶת־שְׁמוֹתָ֜ם לִפְנֵ֧י יְהוָֹ֛ה עַל־שְׁתֵּ֥י כְתֵפָ֖יו לְזִכָּרֹֽן:

You shall place the two stones on the shoulder-pieces of the ephod, remembrance-stones for the children of Israel. Aaron shall carry their names before God on his two shoulders as a remembrance.  Exodus 28:12

וְנָשָׂ֣א אַֽ֠הֲרֹ֠ן אֶת־שְׁמ֨וֹת בְּנֵֽי־יִשְׂרָאֵ֜ל בְּחֹ֧שֶׁן הַמִּשְׁפָּ֛ט עַל־לִבּ֖וֹ בְּבֹא֣וֹ אֶל־הַקֹּ֑דֶשׁ לְזִכָּרֹ֥ן לִפְנֵֽי־יְהוָֹ֖ה תָּמִֽיד:

And Aaron shall bear the names of the children of Israel in the breastplate of judgment upon his heart, when he goes in to the holy place, for a memorial before the Eternal continually. (28:29)

It was, at first, the two engraved stones on the shoulders of the ephod – “avnei zikaron” – “stones of remembrance” that I noticed – avnei zikaron.  I have recently returned from Lausanne, where with my brother and sister we dedicated a new stone on the grave of my grandfather, who had died there from damages he had originally acquired in Dachau. Having eventually got to a clinic in Switzerland, stateless and without access to any of his assets, he had died and been buried by the community there. My grandmother had arranged a stone to mark the grave, my father had had it repaired, but on a recent visit we saw that his grave was essentially unmarked – the composite the stone had been made from had not held the letters of his name.  Here, to all intents and purposes, lay the body of an unknown man.

We arranged a stone to go onto his grave, and while the stone on a grave is usually called in Hebrew a “matzevah”, from the standing stone marking the grave of the matriarch Rachel, this felt more like an even zikaron, a stone to provoke memory. We felt it was important to not only mark the grave and give our grandfather back his name, but to create something that would cause an onlooker to think about him and to learn something of his essence. So we added  his title – Landgerichstrat – County Court Judge. And we added the name of my grandmother buried in Lugano, of my father buried in Bradford, and the name of his aunt Helene who died in Theresienstadt.  We added the dates of their lives, their relationship to my grandfather and the places where they were born and died. And at the foot of the stone is the acronym found on so many Jewish graves – taf nun tzaddi beit hei – t’hi nishmato tzrurah bitzrur ha’hayim – may their souls be bound up on the threads of life.

Seventy years after his death, we, his descendants whom he never knew and could not even have imagined, found great meaning in creating for him an even zikaron – a memorial stone that not only gave him back his name, but in some way brought him back into the fabric of life. It gave him a measure of dignity; it recorded that here lay a man who loved and was loved, who had had learning and held a respected career, whose family had become scattered – and worse – because of forces we can still not really understand.

So much memory was encapsulated in the engraving.  Four names and their relationship to the man lying there.  A status in society; six towns in four different countries. We stood around that snowy grave under a winter sun and told family stories, traced the journey that had led this man whose family had been in the Lower Saxony area for hundreds of years, to a lonely grave far from those who had loved him. We remembered our father whose yahrzeit, like that of his father, fell that week and how, through him, we had come to know and root ourselves in a world that no longer really exists, yet continues in memory, in some artefacts, and in words.

I have consecrated many gravestones in cemeteries in several countries on different continents, as well as memorial plaques in libraries and synagogues – of family, friends and congregants. But I never understood as I understood then the power of a stone that records and remembers when all else seems to have passed into history, the power of avnei zikaron.

There is a strong idea in Judaism that a person is not forgotten as long as their name is remembered.  This is why the museum dedicated to the Shoah in Israel is called Yad v’Shem – a name taken from Isaiah (56:5) which reads “To them will I give in my house and within my walls a place and a name (Yad v’Shem) better than sons and of daughters: I will give them an everlasting name that shall not be cut off” –  and is designed to hold memory, to be a place which records and names all those who have no descendants to memorialise them, no one to speak their name and tell their story.    Talmud says that when we teach what we have learned from someone else, we do so b’shem omro-  in their name – and Talmud tells us the lips of deceased teachers move in the grave when we do so – they are continuing to teach and so still attached to life.  We name our children for dead relatives; we blot out the name of Amalek from under heaven – (quite literally in the case of torah scribes who test their pens by writing the name of Amalek on some parchment and crossing it out).  The book of Proverbs tells us that “the memory of the righteous is a blessing, but the name of the wicked rots away (shall be forgotten.)”  Again and again, remembering someone’s name is seen as synonymous with keeping them from the ultimate oblivion of death;

The stones on the breastplate of the High Priest that kept the twelve tribes of Israel before the gaze of God also had the effect of reminding the priest that his service to God was in the name of and on behalf of every single Israelite.  And the Midrash tells us that they were avnei zikaron not only in order that God would remember, but that the Priests would remember.

The Stolpersteine project is another way to keep alive those whose memory was almost entirely obliterated. The artist Gunter Demnig began a project in 1992 to remember the victims of National Socialism, by installing commemorative brass plaques in the pavements of their last address of choice. The ordinary cobblestones on the pavements outside their homes are replaced, putting in their place stones with a plaque that bears a simple inscription – the name, date of birth and the date and place of death, if known of each individual. One stone per person. The stones are positioned outside the houses of Jews, Roma, Sinti and others who were murdered by the Nazi regime.  Stolpersteine, stumbling stones, can be found in Germany, Austria, France, Hungary the Netherlands, Belgium the Czech republic, Norway, Italy, the Ukraine, Greece, Sweden, Denmark, Finland  and more recently Spain….  What began as a mainly artistic endeavour has turned into a powerful aid for people to create memory, to bring back to life in some way those who disappeared, murdered, their bodies unburied and desecrated. It is a measure of the power of this project that to get one installed will take well over a year, so long is the waiting list of those who wish to commemorate family.

The original meaning of the word stolpersteine used to be “an obstacle”, something that prevented you getting to your goal; but that has changed, the focus is drawn to the immediate now rather than on the horizon. They are designed to provoke thought, to make us see the world around us a little differently for a moment, as the people who once walked those streets until taken away and murdered, come to focus and live for us for a short while. So now one stumbles over the stone in the pavement and stops, reads, thinks of the individuals and the families who lived in the house or apartment adjacent. Tragically they are also the focus of those who do not want to be reminded, do not want to accept any role in remembering. We  know that in December last year twenty of them, which commemorated members of two Italian Jewish families – the Di Consiglio family and the Di Castro family – were hacked out and stolen in Rome, others have been defaced or vandalised.

We are told that the High Priest Aaron wore bells on his clothing so that he didn’t die. It is not really clear how death was prevented, but what is clear is that the people could hear him moving around in that sacred space.  People being aware of him somehow kept him from death.  It is our memories and the stories we tell of those we love that keep them living in some very real way. Their bodies may die but the memory lives on strongly. And the best way we can keep their memory in public attention is to inscribe it on a stone – their names, relevant dates, reminders of the person they were, reminders that they had lived a life, had been bound up in the threads of a fabric in which we too are bound up.

The Avnei Zikaron in the clothing of the High Priest were there primarily to remind both God and human beings of the importance of our history together, of the relationship to each other that has given meaning to both parties.   Stones of memory mean that as long as we will not forget each other we won’t completely die, and that when we die we will not be completely forgotten. And that matters.

The acronym “taf nun tzaddi beit hei” is found on Jewish graves the world over, and refers to the idea that the life being recorded here is not completely ended, but its threads are connected to the continuing future – be it through descendants or stories, be it through the impact the person had on others, their teachings, their behaviour, their actions. After we had recited the psalms, sung the El Malei Rachamim, spoken the words of Kaddish Yatom the mourners kaddish, after we had shared memories and stories of a man we never knew except through his impact on our father, and stories and memories of our father, our grandmother, and the elderly woman murdered in Theresienstadt after 80 years of life in a quiet village tending the family synagogue and the family shop, we bent down and placed on my grandfather’s grave some small stones, one for each of us, one for our parents, and one for each of our children. And then one for the soon to be born baby of the next generation of our family.  Stones put down on sacred space as avnei zikaron, for life goes on.

sermon at lev chadash February 2019