Mishpatim sets a code of law that is the basis of the Jewish legal system. The parasha can be broken down in the following manner: The first section speaks about rules for worship, the treatment of serfs, and laws that relate to capital and non-capital offenses, and property; the second section speaks about moral and religious duties and justice; the third section speaks about calendar observances; the fourth section provides a foretelling of the Israelites' advances in the Land; and the final section provides a ratification of the laws by the people.
For our purposes today, we are going to focus on one law: the treatment of orphans. Let's turn to Chapter 22:21- 23: "You shall not ill-treat any widow or orphan. If you do mistreat them, I will heed their outcry as soon as they cry out to Me. and My anger shall blaze forth and I will put you to the sword, and your own wives shall become widows and your children orphans."
That warning as you noticed is quite strong. Why was there such a huge emphasis on widows and orphans? They are an example of the weak among the Israelites who were in need of protection in order to survive.
Maimonides commented on this verse by saying that widows and orphans even if they were wealthy or the widow or orphan of a king were to be protected because their spirits were low. He addressed our behavior towards them as well by saying: " One may not speak to them otherwise than tenderly. One must show them unvarying courtesy; not hurt them physically with hard toil, nor wound their feelings with hard speech. One must take great care of their property than of one's own. Whoever irritates them, provokes them to anger, pains them, tyrannizes over them, or causes them loss of money is guilty of a transgression, and all the more so if one beats them or curses them."
As early as Talmudic times, Jewish courts appointed guardians for orphans who inherited their father's estate. One of the roles the guardian fulfilled was to administer the inherited estate so the child had food, clothing, and shelter. When a child was left an orphan, the responsibility for fulfilling that child's rights became the responsibility of the entire community. Those rights included the right to live a life of dignity and freedom but also to be provided the skills by which one could survive natural dangers and also earn a living. In addition, the transmission of spiritual values and providing a Torah education, also became part of the communal responsibility.
A midrash in Exodus Rabbah 45 discusses the importance of bringing up orphans. In this passage Moses is shown a valuable treasure in Heaven that is waiting for those who bring up orphans.
In America, the tradition has been to identify an individual as an orphan if both parents have died. The term orphan, however, has grown to extend itself to those children who have also been abandoned by their parents, abused, or neglected and are in need of moving into the foster care system. The foster care system in the U.S. has approximately 500,000 children who are currently being served, of those approximately 120,000 are awaiting adoption. At age 18, however, a child ages out of the system, just at a time that they are most vulnerable. Their futures often involve homelessness, substance abuse, and incarceration, because without financial support and emotional guidance, children who have aged out of the system are often unable to negotiate the obstacles they will face alone.
Jewish law has also extended itself to custody issues when both parents have died and the custody of the child needs to be determined. According to the Shulchan Aruch, there is no possibility that a stranger would receive custody rights over a relative. A Jewish court would decide which grandparent if still alive would receive custody rights based on the best interests of the child. In the case of an orphan, the Jewish court sees itself as the orphan's gurardian, and concerns itself with only actions that are in the child's best interests. Those interests do not end at age 18 as in the American legal system. They involve an obligation to educate and prepare a child for self-sufficiency in the future.
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