Breaking the Social Contract (Mishpatim)



Based on the commentary of Rabbi Shimshon Raphael Hirsch

Five questions (you've probably heard the first three before):

1. What’s the difference between robbery (gezel) and theft (geneiva)?
2. Why does a thief have to pay the victim double the value of the object stolen, whereas the robber just needs to return the value of the object itself?
3. Why does someone who steals sheep and cattle have to pay an increased fine of four and five times the value? 
4. Why does it require a Beit Din to rule on the fine?
5. If the thief can’t pay, due to lack of cash, he works as a ‘slave’ (actually more like an indentured labourer). Why does the thief/slave solely need to pay off the first half of the debt, but not the second half, the double portion?

Rabbi Hirsch explains that the difference between robbery and theft, is that robbery is done with the knowledge of the victim, whereas theft is without his knowledge.

Rav Hirsch explains that we are willing to leave our possessions out of our immediate sight, because we have an intrinsic trust of our fellows in our society, that they will step in to prevent theft.  

We leave our car outside, our house behind us empty, because we know that there’s a rule of law, rather than anarchy, and this means they are reasonably safe. It’s a trust based on a social contract.
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The reason that the thief pays double, is that he pays once to compensate the victim for his direct loss, and pays an additional fine, to punish the thief for breaking this social contract (which also applies to him!).

Rabbi Hirsch points out that this social contract is even stronger for livestock, which were usually left to graze in open areas - and therefore the betrayal of that enhanced area of trust is even more damaging to society.

I suggest that he pays the fine to the victim (rather than, say, to the Beit Din or to charity), because the victim has suffered the impact of two crimes: Deprivation of his property, and a breaking of the trust that the victim had in his society. The second one can itself be a major trauma, or violation, for the victim.

Although the requirement for a thief to give back or pay back for the property he has stolen is self-evident & obvious, we need the intervention of a Bet Din to impose the fine element, because the Bet Din represent the public, whose social contract has been broken by the thief. 

When the thief is unable to pay the victim back for the object itself, due to lack of funds, he is required to solely work off the direct damage, the loss of the object, rather than the secondary crime of breach of social trust. 

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