“The ‘Sophisticated’ and ‘Unsophisticated’ Criminal”

by Rabbi Ephraim Z. Buchwald

This coming week’s parasha, parashat Mishpatim, is a lawyer’s dream and a layman’s nightmare. There are 53 mitzvot in parashat Mishpatim, ranking it fifth among the parashiot in terms of the number of mitzvot it contains.

This parasha is literally a cornucopia of diverse and fascinating laws. 3,300 years ago, the Torah in our parasha already speaks of the inalienable rights of individuals. Parashat Mishpatim also expounds on a host of other laws: the laws of murder, crimes against parents, kidnaping, personal injuries, damages caused by animals, seduction, witchcraft, sodomy, oppression of the weak, offerings of the first fruits, truth and justice, love of enemy, the sabbatical year and the Sabbath day, and a vast array of other issues that are both challenging and enlightening.

On a number of occasions, the issue of thievery is mentioned in our parasha. At the beginning of Exodus 22, the case of the burglar who breaks into a home is raised, and the Torah addresses the issue of whether and when the occupants are permitted to defend themselves if their lives seem to be threatened.

In Exodus 22:6, the Torah records that if a thief is caught, he must pay double the value of that which he stole. The Hebrew term for theft is g’neivah, which in Jewish legal terminology means “stealthy theft” or larceny, that is theft without confronting or physically intimidating the owner. G’neivah may take the form of breaking in to someone’s home when the owner is away, stealing someone’s parked car, or embezzlement. In effect, the Torah establishes that the penalty for a person who steals in such manner should be to suffer the same personal loss that the thief attempted to inflict on his fellow man. Consequently, Jewish law says that the thief must not only restore the principle-–the original amount stolen, but must also pay a fine equal to the value of the principle. For example, if a car worth $5,000 was stolen, the thief must pay $10,000, thus suffering a loss equal to that which he wished to have his fellow man suffer.

There is, however, another type of thief in Jewish law, a gazlan. A gazlan is a brigand, a highwayman, a pirate, a mugger, who approaches the victim and demands: “Your money or your life!” Strangely, Jewish law states that the gazlan need only restore the value of the original theft. If the gazlan wishes to do tshuvah, if he truly wants to repent, then he must add a surtax of 1/5, 20%, and bring an offering to the Temple.

The rabbis in the Talmud, Baba Kama 79b, are hard pressed to explain why a thief who extorts or steals without physical intimidation must pay more than one who threatens violence. Rabbi Yochanan ben Zakkai offers a response that is quite unique and revolutionary. He argues that the gazlan–-the mugger, the brigand, as contemptible as he may be, is at least theologically consistent. He is obviously not afraid of G-d, so he steals. But he is also not afraid of man, and therefore confronts his victim brazenly–face to face. The ganav, on the other hand, is also not afraid of G-d, so he too steals. But the ganav is afraid of man, so he avoids confronting his victim. If that is the case, say the rabbis, for his theological inconsistencies, the ganav, must pay more. As objectionable as the behavior of the gazlan (the mugger) is, at least he is consistent, whereas the ganav is not only a thief, he is a hypocrite, as well.

It may be further argued that by meting out unexpected and unequal punishments to the ganav and the gazlan the Torah and the rabbis are perhaps trying to tell members of society that so-called “white collar” crimes are at least as serious and can be as devastating as what we commonly call “blue collar” crimes. Stealing someone’s possessions, their life savings, embezzling someone’s business, the Torah declares, can be as physically and emotionally destructive as hurting or threatening someone physically. Society shouldn’t try to rationalize that simply because a person is a “sophisticated” thief, he should be excused with a lesser punishment.

Once again we find our Torah enlightening us with new insights into life and living, constantly offering profound understandings of the nature of human beings.

May you be blessed.