Mercy, the Jewish Contribution to Justice
By Eugen Schoenfeld
On a recent Shabbat the synagogue was filled, and the joyful noises of the congregants who came to celebrate a bar mitzvah sounded to me as a shout of am Yisrael chai — the Jewish people are alive.
When it came to the Torah reading, I by chance opened up at the beginning of Parshah Mishpatim. G-d tells Moses: “And these are the laws and judgments that you should set before them.” Suddenly my mind returned to my youth.
My bar mitzvah in the late fall of 1938 brought with it some significant changes in my life. First, my hometown had been taken over by the Hungarians, who brought with them anti-Jewish laws. This event I believe hastened the development of my Jewish consciousness.
As a child I never thought about being Jewish. I did what my parents required of me, but when confronted with official anti-Semitism, I responded with the development of a sense of pride. I am a Jew; I am part of the people who gave the world the “book.”
This sense of pride reminded me of a converted Jew: Benjamin Disraeli.
In spite of his political Tory perspective, and though he was instrumental in making India a British colony and elevating Queen Victoria to empress of India, I have a warm spot in my heart for Benjamin Disraeli.
The Disraeli family (formerly D’Israeli) escaped Italy during the Inquisition period and settled in England. His father, Isaac, after one of his numerous quarrels with his synagogue in London, rejected Judaism and converted his children to the Anglican religion.
Benjamin thus didn’t participate in the Jewish rite of passage, the bar mitzvah, and instead at age 12 he and his brothers and sister were baptized.
Late in his political career he became prime minister of Britain, and yet, in spite of his baptism and his marriage to a wealthy Christian widow, he was not accepted by many of fellow members of Parliament, who called him “the Jew.” In a biting comment, he chastised his colleagues, declaring: “When my ancestors wrote the book, yours were still running in forests, clad in animal skins.”
Like Disraeli, I too was always proud of my heritage and especially that we were the “people of the book.” In my youth I believed, erroneously, that we Jews were the first to provide a legal code. My pride was hurt, and my ego as a Jew was threatened when at the age of 15 I became aware of Hammurabi’s Code.
In 1940 I didn’t know much about Hammurabi except that he developed a legal code that preceded the Torah. At that time I didn’t have encyclopedias or libraries where I could get more information. It was much later, here in the United States, that I was reintroduced to Hammurabi’s Code.
Hammurabi, the king of Babylon around 1850 B.C.E., approximately at the time when Abraham walked in the Land of the Two Rivers, of Babylon and Chaldea, carved into a large stone tablet the laws that he presumably received from the sun god Shamash and that became the foundation to Semitic codes of law. Indeed, his laws, like those in the Torah in Mishpatim, start with statutes that govern slavery, then address crime, inheritance and divorce.
I could not deny the historical reality of Hammurabi’s Code or an even earlier code of Ur-Chaldea. I had to readjust my thinking and ask myself what were and continue to be the Jewish contributions to the principles of the legal and moral code.
First, let me propose that Hammurabi’s Code does not include any moral ideals — namely, it lacks the general principles from which one can derive proper, just and humane interpersonal relationships. The code consists of a set of laws, and harsh laws indeed, wherein most violators are executed even for insignificant infractions.
Hammurabi’s Code is a good example of lex talionis, a law that is punitive and does not contain the idea of mercy or understand the conditions that led to the violation of the law. The law is founded on punishment: If one causes another to lose his eye, punish the perpetrator by taking out his eye, then a tooth for tooth and a life for a life.
The weakness of Hammurabi’s Code is the absence of mercy and understanding. Such a view of law didn’t exist until Judaism introduced the ideal and principle of mercy. It is Judaism that proposed that G-d created the world committed to the ideals of justice but always mitigated by the ideals of mercy.
It is Judaism’s view that led to a more modern view of law — one that substituted the principle of compensation for that of retaliation. Unlike Hammurabi’s Code, which demands that one who caused another to lose his eye should be punished by taking out his eye, Judaism teaches the law of compensation: The victim should be paid for the loss of the eye — the pain, the emotional suffering and the loss of earning capacity.
One cannot create a status quo ante — the lost eye cannot be restored — but compensation can make the victim whole.
Similarly, I would propose that we reconsider our commitment to capital punishment. For sure, taking revenge on one who has committed a heinous crime may satisfy our anger, but then what?
Killing a murderer who caused the loss of a family’s wage earner may reduce the collective anger, but it will neither bring back the victim nor compensate the family for the loss of a wage earner. Let us extend the restitutive principle to make the criminal pay for the family’s loss of wages and not merely make the killer languish uselessly in prison.
Even more important, Judaism and its ideals led to the creation of a sense of morality — principles such as tzar bal chai, the consciousness of pain, and the consciousness of duty to others, from which we derived the ideals of tzedakah and gemilut chasadim, or giving and doing good.
Hammurabi did create a legal code, but it took Judaism to make such a code humane.
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