This week’s Torah portion, Mishpatim, deals primarily with social laws as its name suggests. This is the realm of “between man and his fellow,” which corresponds to civil law. The portion specifies laws regarding loans, neighbors, watchmen, thieves, slaves, and more. Most of the Torah laws addressing these areas are concentrated in Mishpatim.
One of the interesting and surprising laws is the punishment that the Torah prescribes for a thief and a robber. A thief is someone who takes an object from another person secretly, without being seen. In contrast, a robber does the same act openly. The robber, as opposed to the thief, does not hide when he steals but forcefully takes what is not his.
The Torah does not impose harsh punishments on thieves and robbers. This does not mean that conducting oneself according to the laws of the Torah allows for stealing, but it only refers to the return of what was stolen. If official authorities decide to increase the punishment for thieves, it is a legitimate decision. However, let’s examine the punishments mentioned in Mishpatim.
Examining biblical pubishments
When a thief is caught, he must pay a double fine, known as “kefel.” If he stole a sum of NIS 100, he must repay NIS 200 to the victim. On the other hand, a robber, when caught, only has to pay the amount he stole, without any additional fine. On the surface, it seems like a perplexing law, since a robber commits a more severe act than a thief. Besides the act of theft, the robber also expresses audacity and boldness in his actions. Surprisingly, the Torah seems to view the acts of the thieves more negatively than those of the robbers, as reflected in the severity of the penalties imposed on them.
The Babylonian Talmud raises this question in the name of the students of Rabbi Yochanan ben Zakkai, who lived in the first century CE and was a witness to the destruction of Jerusalem. His students asked him: “For what reason was the Torah stricter with a thief than with a robber?” His answer: “This one, the robber, equated the honor of the servant to the honor of his master... As it were, the thief establishes the eye below, i.e., God’s eye, as though it does not see, and the ear below, i.e., God’s ear, as though it does not hear (Talmud Bavli, Bava Kama 79b).
Rabbi Yochanan ben Zakkai delves into the psyche of the thief. Why does he commit his actions secretly? Because he fears being caught by the owner of the property or by the authorities. However, the thief does not hide from God, as God knows his actions even when committed in secret. In contrast, the robber does not fear God or other people.
Some suggested another rationale for the severity of the thief’s punishment as compared to the punishment for the robber. Although the robber engages in violence, he is not afraid of the reactions of either God or humans. The thief, on the other hand, is motivated by fear of being caught. However, the implications of the thief’s actions have more far-reaching consequences than the direct consequences of the robber’s actions. The thief damages societal trust and raises suspicion and fear about others.
In the Book of Deuteronomy, we find a curse directed toward “one who strikes his fellow in secret.” Someone causing harm to others commits a severe act, but one who does so secretly commits a more severe one, since besides the direct result of the theft, there is an indirect consequence of creating a general lack of trust. A person who is struck in secret suspects those around him, perhaps even family members and friends, and does not trust those in his environment. This damage is much more severe than the direct harm, as trust in others is one of the most crucial social foundations.
Without trust, we cannot conduct business or form or maintain relationships with others. Certainly, without trust, we cannot get married and establish a family.
One cannot underestimate the power of a society where trust prevails. The portion of Mishpatim, which deals with human relationships, highlights the significance of social trust and the severe consequences of its absence. ■
The writer is rabbi of the Western Wall and Holy Sites.