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עשה תורתך קבע – אמור מעט ועשה הרבה

Mitzvah 49: The Laws of Fines

Posted by rabbiart on July 15, 2008

A study of the traditional 613 mitzvot (commandments/obligations) according to their order of appearance in the Torah.

We see the Talmudic concern for midah k’neged midah (measure for measure) reflected in the explanation of this commandment.  The commandment itself is based on Shemot 21:18-19 which reads

אִם-יָקוּם וְהִתְהַלֵּךְ בַּחוּץ, עַל-מִשְׁעַנְתּוֹ–וְנִקָּה הַמַּכֶּה:  רַק שִׁבְתּוֹ יִתֵּן, וְרַפֹּא יְרַפֵּא.   .וְכִי-יְרִיבֻן אֲנָשִׁים–וְהִכָּה-אִישׁ אֶת-רֵעֵהוּ, בְּאֶבֶן אוֹ בְאֶגְרֹף; וְלֹא יָמוּת, וְנָפַל לְמִשְׁכָּב

if men contend, and one smite the other with a stone, or with his fist, and he die not, but keep his bed; if he rise again, and walk abroad upon his staff, then shall he that smote him be quit; only he shall pay for the loss of his time, and shall cause him to be thoroughly healed.

Although the text in Shemot refers only to striking, we learn that regarding one who shames another, the beth din should cause him pain by requiring the perpetrator to pay money to the person that has been shamed.  We learn elsewhere that fines are only to be imposed by an ordained, authorized beth din in the land of Israel. The proper age for a recognized scholar to sit on a Bet Din is 18, but a judge acting as a solo Bet Din must be forty in order to impose monetary penalties.

The Talmudic explication of this particular mitzvah (of course the identification of specific mitzvot, and the creation of a list, is post-Talmudic) reveals some of what modern non-Orthodox readers may see as gender related difficulties in the tradition.  On the one hand, the implementation of the laws of fines is a mitzvah that applies only to men, because men are assigned public roles, including the imposition of justice.  On the other hand, the effect of the law is extended to women; who might be either victims or perpetrators of wounding or shaming.

The specifics of the law vary depending on the location of the incident in question and the Beth Din.  The law is primarily intended for a court system in the land of Israel which Hashem originally promised to Abraham Avinu.  Batei Dein acting outside of the land have authority (in Jewish law) only by being agents of courts inside the land.  Courts outside the land do not impose and collect fines, but any transgressor is palced in herem (excommunication) until he (or she) makes teshuvah with an injured party.  Once the teshuvah (RMBM describes a very specific procedure) is attempted, the transgressor is released from excommunication whether the injured party becomes reconciled or refuses reconciliation.

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