“The ‘Sophisticated’ and ‘Unsophisticated’ Criminal
(updated and revised from Mishpatim 5761-2001)


by Rabbi Ephraim Z. Buchwald

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

This parasha is literally a cornucopia of diverse and fascinating laws. 3300 years ago, the Torah, in parashat Mishpatim, already introduced the concept 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 appears in our parasha. At the beginning of Exodus 22, the case of the burglar who breaks into a home is raised. The Torah even addresses the issue of whether and when the occupants of the home 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 the item he stole. The Hebrew term for theft is גְּנֵבָהg’neivah, which in Jewish legal terminology means “stealthy theft” or larceny–theft without confronting or physically intimidating the legal 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 this manner is for the thief to suffer the same personal loss that he attempted to inflict on the victim. Consequently, Jewish law says that the thief must not only restore the principal-–the original value of the stolen item, but must also pay a fine equal to the value of the principal. 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 the victim to suffer.

There is, however, another type of thief in Jewish law, known as a גַּזֽלָןgazlan. A gazlan is a brigand, a highwayman, a pirate, a mugger, who approaches a victim and demands: “Your money or your life!” Strangely, Jewish law states that the gazlan need only restore the value of the original theft and is not required to pay a penalty. If, however, the gazlan wishes to doתְּשׁוּבָהt’shuvah, if he truly wants to be fully repentant, then he must add a surcharge of 1/5 or 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 Zakai, offers a response that is rather discerning. He argues that the gazlan–-the mugger, the brigand, as contemptible as he may be, is at least theologically consistent. The gazlan is obviously not afraid of G-d, which is why he steals. But, he is also not afraid of man, and therefore confronts his victim brazenly–face to face. The גַּנָּבganav, on the other hand, is also not afraid of G-d, so he too steals. But, the ganav is in dread fear of man, so he avoids confronting his victim and acts stealthfully. 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 proclaim to members of society that so-called “white-collar” crimes are at least as serious and can be as hurtful and devastating as those crimes we commonly call “blue collar.” The Torah declares that stealing someone’s possessions, his or her life savings, embezzling someone’s business can be as physically and emotionally destructive as hurting or threatening someone physically. Society should never falsely rationalize that a “sophisticated” thief should be excused with a lesser punishment.

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

May you be blessed.

Please Note: This Shabbat is Shabbat Parashat Shekalim. On this Shabbat, an additional Torah portion, known as Parashat Shekalim, is read. It is the first portion of four additional thematic Torah portions that are read on the Shabbatot that surround the holiday of Purim.

This week’s supplementary Torah reading is found in Exodus 30:11-16 and speaks of the requirement for all the men of Israel, aged 20 and above, to bring a half-shekel in order to be counted as a member of the People of Israel. In later years, these shekels were donated to the Temple in anticipation of the festival of Passover, when funding for the daily sacrifice had to be renewed.