Letter and Spirit

For the week ending 22 February 2020 / 27 Shevat 5780

Parshat Mishpatim

by Rabbi Yosef Hershman
Library Library Library

Crime against Society

Jewish law considers two types of theft: theft (geneivah) and robbery (gezel). They loosely correspond to the crimes of larceny (taking away an object in another’s possession) and robbery (forcibly taking away an object from another). The difference, for example, would be like the difference between stealing a bike from a bike rack (larceny-geneivah) and between forcing an owner off of his bike and taking it (robbery– gezel). In the secular legal codes, robbery is almost always classified as a felony, subject to a greater punishment than larceny. But in certain instances in Jewish law, the reverse is true — a higher fine will be paid by the thief than by the robber.

A robber pays only the amount of restitution, but a thief usually pays a double indemnity. In the specific case of stealing an ox or a sheep and then selling or slaughtering it, the payment is fivefold (ox) or fourfold (sheep). This quadrupling or quintupling of the value is viewed not as restitution, but as a penalty. This fine is only imposed for theft, and not for robbery. Analysis of the special characteristics of oxen and sheep in reference to these concepts sheds light on the reason for this penalty structure.

A robber, gazlan, seizes an object that is under the personal guardianship of its owner. A thief, ganav, finds the object left under the guardianship of public respect for the law. Robbery is an ordinary crime violating the rights of the individual. Theft is a double crime: it violates the ownership right of the individual and also infringes upon public respect for the law. The importance of respect for the law is explained as follows.

When a property owner leaves his home, he leaves his property under the protection of public respect for the law. Respect for the law is the basic principle on which the whole of civilized communal life rests. In a place where public respect for the law cannot be counted on, no man can afford to leave any of his moveable property out of his sight for even one moment.

A thief pays compensation to the victim, restoring the value of the stolen object, and makes another payment of the same amount — a penalty for his contempt of public respect for the law. The violation of this public respect is even more apparent when the theft involves grazing animals, such as cattle and sheep. Animal owners rely on the power of public respect for the law, and commonly pasture their cattle and sheep, leaving them unguarded in the public domain. This was even more prevalent in the case of cattle — which were sent to pasture, as opposed to sheep which were commonly herded into pens. The Torah increases the penalty in the case of one who steals cattle or sheep and sells or slaughters them, because the contempt for public respect for the law is especially egregious when the owner relies so heavily on its protection. Thus, the fine for cattle is even higher than for sheep because the owner relied even more heavily on the public respect for the law in sending his cattle to pasture

·Source: Commentary, Shemot 21:37 .

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