Parshas Mishpotim 5774 Falsehood Stephen Rabinowitz, MD B”H
Parshas Mishpotim is the sixth of eleven parshios in Sefer Shmos. The parsha contains 118 verses, including 23 positive mitzvos/commandments and 30 prohibitions. Chapter 23, verse 7, tells us (translation adapted from R. Chaim Miller (contemporary) who bases it on Rashi (1040-1105)):
מִדְּבַר-שֶׁקֶר תִּרְחָק; וְנָקִי וְצַדִּיק אַל-תַּהֲרֹג, כִּי לֹא-אַצְדִּיק רָשָׁע.
|Distance yourself from anything false. Do not kill a (convicted person, if fresh evidence arises before his execution suggesting that he is innocent); or one who has been vindicated (by the court, even if fresh evidence arises suggesting that he is guilty) for I will not let a guilty person escape punishment.|
Rashi says that one who is convicted by the court is returned to the court for further deliberation, if new exculpatory evidence arises. Appeals based on significant new evidence are accepted and a death sentence can always be revoked. On the other hand, one who has been exonerated by the court is not brought back to court if new adverse evidence arises. Double jeopardy attaches, and even a clearly guilty party cannot be retried; HaShem will deal with him in His own way. This has become part of American law.
Rambam (1135-1204) considers the radically different treatment of the one found guilty and the one found innocent to be so profound, that he counts these as two separate Torah commandments. He also derives from here the inadmissibility of circumstantial evidence as a basis for a capital conviction, since with such evidence a possibility of innocence remains viable. Ramban (1194-1270) agrees that these form two separate mitzvos.
One of the principles in interpreting Torah is the rule of klal u’prat, the general and the specific. When the Torah begins with a generality, and follows with a specific, the meaning of the verse is understood to be focused on the specific. With our verse, which begins with the generality to distance oneself from falsehood, and then moves to a specific case of a person on trial for his life, one might therefore think that the meaning is limited to the special case. The rabbis, however, took a much wider view of the applicability of distancing oneself from falsehood.
Sforno (1470/75-1550) says that the Torah is not dealing here with a brazen perjurer or a liar. This verse refers to more subtle issues such as avoiding an injudicious word that leads a witness to lie.
The Netziv (1816-1893) says that the term “false word/dvar sheker” in our verse tells us that a judge may not extract the truth from a witness by deceiving him. The U.S. Supreme Court said that American police may deceive a suspect to elicit evidence of guilt.
R. Zalman Sorotzkin (1881-1966) notes that VaYikra 19:11 says, “You shall not steal, nor deal falsely; do not lie to one another.” So our verse is more nuanced. Although Gemara Yevamos 65 says that one is allowed certain lies for the sake of peace, one should use words that have dual interpretations, thus distancing oneself from falsehood. R. Sorotzkin offers the example of Yaakov’s conversation with his father, Yitzchok. Yaakov said, “It is I, Eisov your firstborn. I have done as you have told me” (BeReishis 27:19). This could mean, “It is I. Eisov is your firstborn. I have done many things as you told me.” Yaakov had no choice but to lie, but at least he tried to avoid false words. This is a kind of hair splitting, but it preserves an awareness of the truth, so as not to fall into utter disregard for truth.
R. Elie Munk (1900-1981) points out that this verse requires permanent control over one’s words and deeds. For example, a judge who believes he erred should not try to justify his verdict. If he knows that the witnesses have lied, he must not pass an unjust sentence and blame the witnesses. He must not have an ex parte meeting with one litigant in the absence of the other. This is also the American law.
R. Yissochar Dov Rubin (contemporary), in his Talelei Oros, cites multiple examples of the great care that the Chofetz Chaim (1838-1933) took in avoiding even the impression of falsehood. On one occasion the Chofetz Chaim saw a sign announcing a speech he would be giving that identified him as the author of the Mishneh Brurah. He wrote on the sign that he actually had only published the first volume up to that date. The remaining volumes were not yet in press. When introduced to a philanthropist who had previously given to his yeshiva, the Chofetz Chaim insisted that he did not remember the man, although he risked alienating a donor and could have fudged a bit. Another example relates to the Chazon Ish (1878-1953). He heard a man promise his young child a present if he did as he was told. The rabbi quoted the Gemara Sukkoh 46b, where it says one is forbidden to make a promise to a child and not keep it. For one thing, it teaches the child dishonesty, and for another, a minor is legally incapable of forgiving a debt. Rabbi Rubin’s final message comes from the Chidushei haRim (1799-1866), the first Gerrer Rebbe. He noted that the ancient Sages instituted the practice of building a fence of rabbinic prohibitions around the Torah, so that one would not accidentally violate a Torah law. Our verse, however, is unique in having the Torah itself telling us to “build a fence,” to keep distant from falsehood.
The Gemara Sanhedrin 89b tells us that one who frequently lies is punished by people’s disbelief even when he tells the truth. He becomes “the boy who cried wolf.” Yaakov’s sons lied to him, saying that Yosef had been eaten by a wild animal. In later years, when they told him the truth that Yosef was alive, he did not believe them until they brought proof. The Gemara Shabbos 104a points out that the word in our verse, sheker/falsehood, consists of three letters found close together in the Hebrew alphabet, letters that are each written with one leg. We learn from this that lying is commonplace, easy to find and cannot stand for long. The letters of emes/truth are taken from the beginning, middle, and end of the alphabet and each has two legs. One sometimes must look far and wide for the truth, but it can perpetually stand on its own.
A story is told about a Rav who had to write a letter of reference for one of his congregants. He wrote several lines near the top of a page, and signed at the bottom of the page, leaving a large blank space in between. When asked why he left that large space, he explained that one must distance oneself from falsehood.