Dvar Torah - Parashat Mishpatim

Ben Newman

Mishpatim (Ex. 21:1- 24:18) occurs in the biblical text after Moshe receives the Ten Commandments, and the revelation of God’s presence to the people on Sinai. However, according to some rabbis, such as Rashi (on 21:2) this text is actually a flashback to the previous parashah and the moment of receiving the law at Sinai. Perhaps the ambiguity on this point arises due to the fact that the narrative style of Mishpatim which has been called The Book of the Covenant - Sefer ha-Berit (see Ex. 24:4,7) - seems to fit better before Ex. 20:15-23 (the section which recounts the peoples’ reaction to the revelation.) It is enough here to note that the chronological place of this section of Torah is up for debate. The parashah contains a list of legal rulings based on hypothetical legal cases. At the end of the portion, Moshe writes down these laws and presents them to the people, who ratify them. The laws, prescriptions, and moral imperatives contained in this portion provide a backbone for both a legal system and a community, the community of Israel.

However, when I read through these laws, I am reminded of how different the Jewish legal system and community of the rabbis was from that of the author(s) of the biblical text. One clear example of how the rabbis differed in their interpretation of text is evident in their interpretation of the phrase ‘ayin tachat ayin’ “an eye for an eye” (Ex. 21:24) which occurs in this text. Rabbis of both the Mishnah and Gemara affirm that “an eye for an eye” actually refers to property, and not corporal punishment) (see Bava Qama 83b).

What are the implications of this type of judgment which clearly re-interprets the peshat of the Torah to mean something which it clearly does not say? The uniqueness of this question should not be exaggerated, however, as, in any legal system there needs to be a distinction between theoretical laws which deal with ideal circumstances, and the practical application and enforcement of a particular set of laws on a specific community. As Nahum Sarna writes in his Torah commentary, in reference to our parashah:

They [the laws presented in Ex. 21:2-22:16] are mostly couched in the casuistic style that is typical of all ancient Near Eastern collections of laws. The individual topics are presented in the form of specific rulings about hypothetical, concrete contingencies, not as abstract legal principles. The implementation of the rulings is left to the jurisdiction of the courts.

It should also be noted that this body of legislation cannot strictly be called a law code. It is not comprehensive in scope and is silent on important areas of legal practice, such as inheritance, the transfer of property, commerce and marriage. The gaps must have been filled by orally transmitted customary law that regulated vast areas of human relationships. The items dealt with in the Torah must be regarded as innovations and amendments to existing practice. (Exodus, JPS, p. 177, emphasis mine.)

According to Sarna, during the biblical period this text did not serve as a comprehensive law code, but rather pointed at certain ideal circumstances which were fleshed out in the spoken law. We are told by the rabbis that Moshe received both a spoken and written law on Sinai. By the time of the rabbis, it is clear that the Halakha (whose name- ‘the going’ gives itself away), was a living, growing, changing system, which used the written Torah as its point of departure. This is similar to how US law uses the constitution as a point of departure, while particular judicial decisions provide movement and life to the system.

There are indeed ethical norms presented in this portion which make the values of the biblical civilization clear, and which the rabbis affirm, such as caring for the poor, the widow, the orphan and the weak. On the other hand, in terms of specific application of law, a spoken law created by judges is imperative. This is because there will always be exceptions to written laws when they are applied to real life. Even many of the laws of physics can only be stated under ‘ideal’ conditions.

The prohibition against murder, presented in this parashah, for example, can easily be subverted by appealing to the ruling which allows us to kill someone who is pursuing us to kill us. What happens, however, when these exceptions are used to justify an evil act, such as Yigal Amir’s assassination of Prime Minister Rabin? Is the relativism of the spoken law a slippery slope into chaos? Could we live in the world of the written law where people cut off each others’ hands, and pluck out each others’ eyes? It would seem that neither the written nor the spoken law by itself can create a functioning society, governed by law. The written law is too rigid, too impersonal and objective, while the spoken law is too subjective, too open to interpretation, too flexible. Under these circumstances, how can a human being know how to live her life morally? Upon what are judges to make their judgments in legally ambiguous situations? The rabbis address this last question in a very interesting way in Hagigah 3b. They write:

‘The masters of the assemblies’- these are the wise scholars who sit in various groups and occupy themselves with the study of Torah. There are those who declare a thing ritually contaminated and there are those who pronounce it clean; those who prohibit and those who permit; those who disqualify and those who declare fit. Perhaps a man will say: How can I ever learn Torah and understand it precisely, when every issue is subject to debate and disagreement? To allay this concern scripture states that all the various opinions are ‘given from one shepherd’ (Ecc. 12;11)—one God gave them; one leader proclaimed them from the mouth of the Master of all matters, blessed is He. As is written: ‘And God spoke all these words.’ (Ex. 20;1) Hence, you too make your ears like a mill-hopper, and acquire for yourself a discerning heart to hear intelligently the words of those who declare a thing impure and the words of those who pronounce it pure; the words of those who prohibit and the words of those who permit; and the words of those who disqualify and the words of those who declare it fit. (adapted from The Schottenstein Talmud edition)

Here we see the rabbis’ answer to the ambiguity of the law. One who wants to know how to practically apply the law (presumably, here, one who is learning to be a judge) must acquire a ‘discerning heart,’ an inner sense of the intent of the law, of right and wrong.

How can we apply this teaching to our own time, and in our own country? One possibility is that when judges are chosen we should look for judges of our legal system who not only know the written law but have a ‘discerning heart,’ a feeling for how to relate this law to real life. Another possible lesson anyone in our contemporary age could take from this is that in the face of impersonal and ambiguous law, we must learn to develop discerning hearts to help us discover the ethical course of action in any particular situation.

May HaShem help us all find discerning hearts to help guide us along the winding paths of our lives, which will inevitably contain many sticky moral dilemmas to contend with along the way!