Mishpatim

  • Rav Avraham Walfish

 

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Much comment has been elicited by a single letter, appearing at the beginning of our parasha - the opening "vav" of "VE-eileh ha-mishpatim" (AND these are the statutes). This "vav" connects our parasha with the end of last week's parasha, as noted by the midrash (Mekhilta) and Rashi. At first glance it would seem hard to find a greater contrast than the overwhelming mysterium tremendum of last week's Sinaitic revelation - "you have seen that from the heavens I have spoken with you" (20:18) - and this week's minute attention to mundane detail: laws pertaining to the family life of a slave, to assorted forms of homicide, torts and bailments, to judicial proceedings, agriculture, lost items, and more. The conjunctive "vav," connecting these two portrayals of Jewish religious experience, highlights the contrast between them, while binding them together as consecutive points on a spiritual continuum. The statutes of this week's parasha are not an independent unit, but a continuation of the Sinaitic revelation. Indeed the awesome experiential peak of witnessing the divine Presence and hearing His voice is not the goal or the acme of Israelite religion: "for in order to accustom you [to faith in God - see Ramban] has God come and in order that His fear shall be upon you that you shall not sin" (20:16). Judaism is not a religion of "peak experiences" (Abraham Maslow), but of living in accordance with the divine will. Hence the syntax of our parasha's opening: the mundane statutes of Mishpatim are not an independent unit, but the direct continuation of the Sinaitic revelation. "And these are the statutes which YOU shall place before THEM." Who is addressing these words, to whom, and regarding whom? Ibn Ezra (introduction to lengthy commentary to our parasha) hints that the answer resides in 20:18: "Hashem said to Moshe: thus shall you say to the children of Israel: You have seen that from the heavens I have spoken with you." The opening pasuk of parashat Mishpatim continues the list of laws that commence with 20:18. The closing laws of parashat Yitro extrapolate from the revelatory experience instructions concerning the way to worship the ongoing divine Presence, echoing the first five statements of the Decalogue. The introductory formula which opens Mishpatim indicates that, while continuing to spell out real-life instruction stemming from the Revelation, the focus has now shifted to statutes, governing the structure of and interactions within Israelite society, rooted in the last five statements of the Decalogue (see Ramban and Abravanel to beginning of Mishpatim).

 

The connection between the statutes of Mishpatim and the Sinaitic revelation is further underscored by the end of this week's parasha. Chapter 24 records the enactment of a covenant between Hashem and His people: a "covenant scroll" is read before the people (24:7) and "covenant blood" is sprinkled upon the two parties to the covenant - the people (24:8) and the altar, representing Hashem. The people, both before and during the covenant ceremony (24:3, 7), declare their acceptance of all that Hashem has spoken. The ceremony culminates in a revelatory experience (24:10), followed by a call to Moshe to ascend into the divine cloud covering Sinai, in order to receive the tablets of the covenant. The midrash (Mekhilta, Bachodesh 3), followed by French commentators (see Abravanel, Ch. 24), sees the covenant of Chapter 24 as a prelude to the revelation of Chapter 19, in accordance with the principle that "ein mukdam u-me'uchar ba-Torah" (the Torah does not follow strict chronological order). These commentators find support for this position from the unusual syntax of 24:1: "And to Moshe He said: ascend to Hashem..." - presentation of the predicate in the "pa'al" form ("amar" = He said) rather than in the usual "vayif'al" form ("vayomer"), as well as moving the predicate from its usual position at the beginning of the sentence to the second position (after the direct object), can be taken as indications that the verb is to be understood as a past perfect construction: "and to Moshe He had already said..." (see Rashi to Bereishit 4:1). According to this approach, the laws of parashat Mishpatim are sandwiched in between two parallel descriptions of the same revelation at Sinai which preceded them. This order may perhaps be explained as a literary device designed to underscore the organic connection between the revelatory experience and the laws issuing from this experience. The laws of Mishpatim are embedded within the revelation of Sinai (textual structure) even though they were given later (temporal order).

 

Ibn Ezra, Ramban and Spanish scholars (see Abravanel) maintain the chronological order of the text. They explain the unusual sentence construction of 24:1 as designed to highlight the contrast between what Hashem wants Moshe to transmit to the people ("which you shall set before them" - 21:1) and what Hashem addresses specifically to Moshe himself: "And TO MOSHE He said: ascend..." (24:1). In their view the laws of Mishpatim are preceded by the Decalogue revelation and are followed by the covenant/second revelation. Why did Hashem command these laws in between these two events? An answer to this question is indicated by the language of 24:3: "And Moshe came and told the people all the words (divrei) of Hashem and all the statutes (mishpatim) and all the people answered with one voice and said: all the things which Hashem has spoken we will do." The covenant between Hashem and the people relates to a comprehensive set of laws, entitled mishpatim. Before entering into the covenant the people must know what these laws are, must be aware of the content of the covenant. This is why Moses is commanded, at the beginning of our parasha to "place [the statutes] before" the people ("tasim lifneihem"): "These legal decisions are placed before the people and recommended for their acceptance, as their selection by God had been left to their assent.... Moses was to make them attractive and appealing to the people by placing them in a suitable light when he explained them and pointed out their underlying principles" (Benno Jacob). The presentation of the mishpatim in the context of the covenant narrative (chapters 19-24) highlights one of the most basic, as well as most unique, features of the Torah's conception of law: law is not unilaterally legislated by a king, either divine or human, but is rooted in an act of free human choice, the decision to enter a covenant. The moral force of the divine law stems, not only from its divine origin, but also - even primarily - from the decision, freely taken by our Israelite ancestors, to subject themselves to a covenant with their divine Redeemer.

 

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Now that we have noted the central role played by the statutes of our parasha in the Sinaitic revelation and covenant, the question arises whether we may detect "their underlying principles" in the selection and arrangement of the laws. Why did the covenant focus specifically on mishpatim, why these specific mishpatim, and are they presented in any special order? Some commentators have doubted whether these questions are answerable with any degree of certainty or authority. Ibn Ezra, for example, remarks (21:2, lengthy commentary): "Before commencing my commentary I will tell you a rule - every statute or commandment stands by itself, and if we are able to find a reason why one statute is attached to another or one commandment to another, we will cleave [to it] with all our might. And if we are unable [to do so], we will assume that the lack is rooted in our limited understanding." Other commentators, such as Ramban and Hirsch, consistently attempt to understand the location and order of mitzvot in the Torah. In the view of Nahum Sarna this is one of the unique hallmarks of Torah law (Exploring Exodus, p. 174): "Another fundamental and dcharacteristic of the Torah is that its legislation is embedded in a narrative matrix of which it is an inseparable component and from which it draws its meaning and significance. Separate the laws from their accompanying narrative, and their sum and substance are seriously impaired. As a result, the law is seen to be an indispensable ingredient of the divine-human relationship." Regarding our parasha, a broad spectrum of commentators, ranging - interestingly - from Ibn Ezra himself (see short commentary to 21:1) down to Sarna, have sought to explain the underlying principles governing the selection and arrangement of these specific laws. In the brief space available to me in this shiur, I would like to focus on the opening two sections, which deal with the laws regarding a Hebrew slave and maidservant.

 

The selection of the laws which open our parasha is explained by Ibn Ezra as follows (lengthy commentary): "There is nothing in the world more difficult for a person than to be in the possession of a person like him, hence he began with the laws regarding a slave." The Ibn Ezra's underlying assumption, that the statutes of our parasha are arranged according to the yardstick of greater and lesser moral severity, has been amplified by many modern commentators. Moshe Greenberg ("Some Postulates of Biblical Criminal Law," in: J. Goldin [ed.], The Jewish Expression) has pointed out the rigorous distinction made in the Torah - as opposed to many other legal systems, ancient as well as modern - between human life ("dinei nefashot") and property ("dinei mamonot"). In this light we may note the progression, in our parasha, from offenses by a human against the life or person of another human, to similar offenses between humans and animals, and finally offenses against property (note the division between offenses against animal life in 21:33 and property offenses commencing with 21:37).

 

According to this analysis, the laws governing slavery may be seen as a highly appropriate opening to our parasha, inasmuch as the institution of slavery represents a blurring of the line dividing human personhood from property. This blurring is reflected clearly in some of the laws recorded in the parasha (Note that I am treating the institution of slavery in toto, without reference to the important distinction between Hebrew slaves and Canaanite slaves, as in Vayikra 25:39-46):

 

(a) When a master strikes his slave and the slave subsequently dies (after 24-48 hours), the master is exempt from punishment "because he is his property" (21:21-22. Rashbam: "and the law allows him to strike him in order to chastise him.")

 

(b) An ox that gores and kills a slave subjects its owner only to a 30-shekel fine and not to "ransom money" designed to redeem the master from a death penalty (21:29-32).

 

(c) The master may (sometimes) compel his slave to cohabit with a slave-girl and the children will belong to the master (21:4).

 

Perhaps this is the reason why kidnapping for the sake of selling (into slavery) is treated as a capital offense (21:16): selling into slavery deprives a person of his personhood, treating him as though he were property, hence it is the moral equivalent of murder.

 

Although the blurring of the lines between humanity and property may be detected in our parasha, the basic thrust of the Torah's legislation regarding slaves and slavery is to preserve, even within the institution of slavery, the basic distinction between the two. The Hebrew slave is not to be enslaved permanently, but is entitled to be freed at the end of six years - effectively abolishing slavery (at least with respect to Jews), properly so-called. Moreover, even as slave his human dignity is to be respected. His basic family ties may not be tampered with (21:3), yet he may choose to preserve his ties with the family unit he created while enslaved (21:6). Similarly a maidservant must either come to be treated as wife or must be freed (21:7-11). While a slave may be beaten - by his master alone (see Rashi to 21:21) - his murder is treated as a capital offense (21:20, 21:32 "the ox shall be stoned") and serious physical injury is grounds for being freed (21:26-27). The Torah's discussion of statutes appropriately opens with laws which, while not abolishing slavery, nonetheless safeguard even within this problematic institution the vital distinction between humanity and property.

 

Benno Jacob suggests an additional reason for opening our parasha with the laws of slavery, based on the historical context. The covenant described in our parasha is to be enacted with a nation only recently redeemed from a lengthy period of slavery. The first social message that needs to be comprehended by the Israelites is that God's gift of freedom to them is absolute and is not to be compromised. This idea is implicit in the opening of the Decalogue (20:2): "I am Hashem your God Who has taken you out of Egypt, out of the HOUSE OF BONDAGE." Two points seem to be indicated, both in the opening to the Decalogue and in the opening of parashat Mishpatim: (1) Only a free people may enter into a covenant with Hashem and carry out His commandments; (2) Egypt, as a house of bondage, represents a model of society which we are to eschew.

 

In support of this idea we may note the reference, in the first passage of our parasha, to doorposts ("mezuza" - 21:6), highly reminiscent of the paschal blood on the doorposts at the crucial moment of the redemption from Egypt. Rashi comments: "The Holy One, be He blessed, said: the door and the doorpost, which were witnesses in Egypt when I passed over the threshold and the two doorposts, and I said: 'for to Me are the children of Israel slaves (Vayikra 25:55)' - they are My slaves and not slaves of slaves, and here this fellow goes and acquires a master for himself!? Let him have his ear pierced before them!" Moreover, the characterization of an Israelite sold into slavery as a HEBREW slave reminds us "that freedom from Egyptian slavery had been demanded in the name of the God of the Hebrews" (B. Jacob).

 

The centrality of combating the Egyptian concept of slavery in the laws promulgated among the recently-redeemed Israelites may be further detected in the limitation of slavery to a six-year period. The allusion to the mitzvot of Shabbat (4th Commandment, 23:12) and of Shemitta (23:10-11) is readily apparent. These mitzvot promote the idea of social equality: the slave is to rest on Shabbat (20:10, 23:12) and Shemitta opens the field to the poor (23:11) as well as to the slave (Vayikra 25:6). The memory of Egypt is meant to serve as a reminder not to oppress the weak and unprotected members of our society: "Do not oppress the stranger, as you know the mentality of the stranger, for you were strangers in the land of Egypt" (23:9, compare 22:20).

 

The laws concerning slavery thus serve, for a recently redeemed nation, as keynote to two dominant themes of our parasha: (1) freedom as the foundation for entering into the divine covenant, (2) social egalitarianism as a central spiritual goal.

 

We may suggest a third reason for focusing upon the laws regarding slavery as keynote to the covenant. Ramban, in his introduction to the book of Shemot, characterizes Shemot as the book of redemption. Well-aware that over half the book takes place after the redemption from Egypt has been completed, the Ramban comments: "The exile is not concluded until they return to their place and to the spiritual level of their fathers, and when they left Egypt, even though they departed from the house of bondage, they were still considered exiled, because they were in a foreign land wandering in the desert. When they came to Mt. Sinai and built a sanctuary and the Holy One, be He blessed, returned His Presence to dwell among them, then they returned to the level of their fathers... and then they were considered redeemed, and this is why the book closes with the construction of the sanctuary filled continuously with the glory of Hashem." I would suggest that the construction of the sanctuary may be regarded as the conclusion of the redemption of Egypt for a different reason: the conof the sanctuary is the first communal project undertaken by the Israelites as a free nation. The book of Shemot is the book in which the slaves of Pharaoh are transformed into slaves of Hashem (compare Vayikra 25:55), hence the centrality of the root a-b-d (to serve, a slave) throughout the book. This was noted by Franz Rosenzweig (Scripture and Translation, p. 68): "Take for example the verbal equivalence of the two sorts of 'service', the slave service done in Egypt and the devout service of labor to be performed in the Tent. This equivalence frames and unites the whole book. In the middle of the book, in the Ten Commandments, it is further woven into the book's texture through the reminder of the house of bondage ('servitude') and the command to 'serve' only one God; and it lies still deeper, beneath the historical surface, in the command to rest on the seventh day, through the use of one and the same word for the servant ("eved") and the six days' 'service' ("avoda"; i.e. work, see 20:9) of the servant's master."

 

A further point may be advanced. While the root a-b-d is employed, as correctly noted by Rosenzweig, to denote the labor involved in constructing the sanctuary ('avoda' - 35:24, 36:5, 39:32, 42), the word most frequently used to describe the work is 'melakha'. The word 'melakha' (from the same root as 'mal'akh', messenger) , unlike 'avoda', has the connotation of work done freely, realization of a freely-chosen project. The book of Shemot opens with forced servitude, back-breaking and Sisyphean "avodat perekh" (1:13-14), and closes with the blessing bestowed by Moshe upon the successfully-concluded 'avoda' (39:42) which is also 'melakha' (39:43). The laws of slavery in our parasha open the statutes designed to transform the 'servants of Pharaoh', who are slaves into the 'servants of Hashem', who enjoy the highest form of freedom. By freeing the Hebrews/Israelites as individuals from servitude to man, they are enabled to create a society devoted to the service of God, a society whose first national project is the construction of a sanctuary.

 

Questions for Further Study and Reflection:

 

1. In the context of explaining the "vav" at the beginning of Mishpatim, Rashi comments: "And why is the passage pertaining to statutes juxtaposed to the passage pertaining to the altar? In order to tell you that the Sanhedrin shall be located near the altar."

 

a. What is the idea behind locating the Sanhedrin near the altar?

b. How does this explanation of the juxtaposition of the two passages compare with the explanation suggested in the shiur?

 

2. In the covenant ceremony of Chapter 24, Moshe introduces the covenant by presenting before the people two kinds of divine communications, entitle: "divrei Hashem" and "mishpatim"(24:3). Compare the following explanations of these two terms:

 

Rashi - Divrei Hashem: the commandments of separation [from women - see 19:15] and setting boundaries [around Mt. Sinai - see 19:12].

Mishpatim: 7 Noachide commandments, Shabbat, Honoring father and mother, Red Heifer, and statutes given at Marah (see Rashi to 15:25)

 

Ibn Ezra (short) - Divrei Hashem: these are: "You have seen that from the heavens (20:20), etc. and "Behold I am sending an angel" (23:20) etc.

Mishpatim: these are "And these are the statutes" (21:1).

 

Daat Mikra - (1) all the words of God and especially all the statutes

(2) all the words of God, namely all the statutes (and this is known as "shenayim she-hem echad" = two which are one = hendiadys).

 

Sarna, p. 159: Mishpatim = Chapters 21:2-22:16; Divrei Hashem = 22:17-23:19.

 

a. Which criterion is employed by each commentator to differentiate the two terms? What is the linguistic basis for each suggested explanation?

b. In what way does Rashi's comment differ from all the others?

c. In what way does Daat Mikra's second explanation differ from all the others?

d. Sarna's explanation affords us a novel insight into the structure of parashat Mishpatim. Elaborate.

e. How might we understand the covenant or the covenant ceremony differently, depending upon these explanations?

f. Which explanation(s) is/are closest to the approach adopted in this shiur?

 

3. How might we understand the relationship between the writing, in Chapter 24, of the covenant book, and the writing of the entire Torah in Devarim 31?

 

a. See dispute in Gittin 60a whether "Torah chatuma nitna" or "Torah megillot megillot nitna" and Ramban's introduction to Torah commentary (pp. 1-2 of Chavel edition). How does your answer compare with the explanations in the Talmud and in the Ramban?

 

4. Ibn Ezra (short) explains the order of mitzvot in our parasha as follows: "The main [principle] is that a person should not commit violence/injustice ("hamas") and compel those inferior to him in power."

a. Explain the order of mitzvot in our parasha using this criterion. How are the different forms of "hamas" graded in the Torah's scheme?

b. How does Ibn Ezra's explanation of the order of mitzvot compare with the way it was explained in the shiur?

 

5. If slavery is seen by the Torah in such negative terms, why didn't the Torah abolish it?

a. An answer to this question may be found in Rambam's Guide to the Perplexed, Part 3, Chapter 32. What is the answer?

b. Can you think of a source in Chazal where they explain why a certain practice, although repugnant, is regulated rather than abolished? Why?

c. See end of Laws of Slavery in Rambam's Mishneh Torah. What is Rambam's moral-educational message here?

 

6. Compare Rashi to 22:20 and to 23:9. Why does Rashi comment differently to each pasuk? (Hint: examine both language and context closely).

 

7. Is Egypt in the Torah always a symbol of a corrupt society whose ways are to be eschewed or are there places where the Torah relates differently to Egypt?