Two Components of the Sinai Experience
Parashat Mishpatim consists of two easily discernible sections. The bulk of the parasha, running from its opening verse (21:1) through the end of chapter 23, constitutes a detailed legal code covering many different areas of civil law, to which several ritual topics - particularly Shabbat and the festivals - are added towards the end. Concluding this portion of the parasha is God's emphasis that Benei Yisrael's successful settlement of the land depends on their observance of His law (23:20-33). In section two, the Torah brings us back to Mount Sinai, to complete the narrative of Ma'amad Har Sinai - the Revelation at Sinai begun earlier. This week's shiur will address each of the two sections of the parasha independently.
Deciphering a Legal Code
In his opening comments to our parasha, Rashi, citing the Midrash, reminds us not to look at the legal content of Parashat Mishpatim as a standard code of civil law. Noting the conjunction "ve-" ("and") at the very beginning of this parasha, Rashi claims that these laws are integrally connected to the previous chapter - the Ten Commandments: "Just as the first were from Sinai, so were these from Sinai." Although they may at first appear indistinguishable from the legal texts of other societies and cultures, the laws of Parashat Mishpatim feature a qualitative difference: they originate from Sinai. They, together with "I am the Lord your God," were transmitted from amid the fire and smoke that descended upon the mountain; they are the practical expression of the ideals of justice and sanctity that must characterize a Torah worldview. As we shall see, the structure of the laws' presentation itself reflects a unique, "Sinaitic" quality that sets them apart from secular legal codes.
The first chapter and a half of the parasha presents laws that we may liberally classify under the title of "nezikin," or damages, as they all involve cases of damage to body or property. (We include the opening verses, which require the emancipation of an indentured servant, under this category, as holding a servant beyond the prescribed period is considered an affront to both body and property; the servant remains physically bound to his master and cannot own personal property). The first subsection, which concludes with verse 21:27, addresses situations of "nizkei adam," damages caused directly by an individual. From there the Torah turns its attention to "nizkei mammon," damages caused by one's property, such as animals and fire, or indirectly through his own actions, specifically theft (as opposed to active destruction). These laws occupy the unit from 21:28 to 22:6. The final unit presents laws relevant to items lost or damaged under the charge of a watchman. (The verse 22:6 is a hybrid of the final two categories; it discusses the laws of theft within the context of the case of the negligent watchman.)
We will focus our attention to the second subsection, damages caused by one's property. A careful study of this unit reveals how close attention to literary structure can bring out a given topic's fundamental themes.
The following list summarizes the cases covered in this unit:
1. An ox that kills a person (21:28-32)
2. Damages resulting from opening a ditch in the ground (21:33-34)
3. An ox that kills another ox (21:35-36)
4. Theft of animals(21:37-22:3)
5. An animal eating or trampling another's produce (22:4)
6. Produce consumed by fire (22:5)
7. Theft of money or utensils (22:6)
These seven cases may easily be grouped into three categories: damages caused by animals (1,3,5), penalties for theft (4,7), and damages caused by dangerous, inanimate property - fire and ditches (2,6). The Torah, however, separates every case from the other members of its group. Most strikingly, it separates the two cases of ox-goring; it devotes one unit to cases of an ox killing a human (1), and then shifts to the laws concerning one who digs a pit (2) before addressing the situation of an ox killing another ox (3). Likewise, the two instances of theft discussed in this unit (4,7), are not juxtaposed one to the other. The same is true about the two cases of damage by inanimate property (2,6). How can we explain the Torah's arrangement of these laws? Does not this style of presentation lend itself to further confusion on the part of the student attempting to master the Torah's legal code? Does not careful, methodical organization by topic assist in the absorption and assimilation of intricate, complex material?
Rav Elchanan Samet explains that the Torah arranged this section from the perspective of the victim, rather than the perpetrator. This unit proceeds from damages to the human being himself to those affecting animals. From there we move on to the destruction of vegetation, and finally we learn of the seizure of inanimate property. These laws thus progress from damage to the highest form of creation - the human being - down to the lowest - the lifeless and inanimate. Why would the Torah select this method, rather than the seemingly more straightforward arrangement based on the circumstances surrounding the given event?
A purely secular legal code, which seeks to present the information in the clearest, most concise way possible to ensure its meticulous implementation, arranges topics based on their external, circumstantial resemblance to one another. Cases involving car accidents, for example, will likely be addressed in the same chapter, regardless of the precise nature of the resultant damage. Purely utilitarian legislation, which is interested in codifying the bottom-line law in every situation, is composed in the manner that best transmits the rigid, legal information. Religious civil law, by contrast, cannot be detached from its ethical underpinnings. Rav Samet argues that the Torah's ethical attitude towards tort law yielded the counterintuitive sequence in this unit. Several halakhic scholars have demonstrated that beyond the obligation of payment incurred through damages, the willful perpetrator has also violated a religious prohibition. Thus, one who decides to ruin the property of another and volunteer to pay for the damages transgresses Torah law and has committed a sin. The Torah arranges the laws of damages and theft according to the stringency of the damage, which is determined by the identity of the victim - human, animal, agricultural, or inanimate. Harming another person constitutes a graver crime than hurting an animal, which is itself a more significant offense than damaging vegetation. Finally, the Torah comes to the least stringent form of property damage - the destruction of inanimate objects. By arranging the material according to the objective severity of each incident, rather than by circumstance, the Torah reflects its religious nature, and goes beyond what is purely legal.
As noted earlier, however, the Torah does group together all instances of "adam ha-mazik" - damages caused directly by the human being himself - before proceeding to damages caused by one's property. Although this second subsection follows a sequence based on severity, the overall structure of the law is arranged based on perpetrator: first the human being, then his property. Perhaps this, too, is meant to express the ethical undertones of religious civil law. Personal involvement in damage to others is deemed more severe than passive liability. Though murder (21:12) yields the same result vis-א-vis the victim as does the fatal goring of an ox (21:28), a clear, qualitative moral distinction exists between the two. The Torah, therefore, first presents instances of personal involvement in crime, followed by cases of liability for damage caused by one's property. This second subsection arranges the laws based on the identity of the damaged person or item, alluding to the scale of severity that corresponds to the nature of that which was harmed.
The Commandments and the Covenant
The second section of Parashat Mishpatim, chapter 24, describes the "covenant ceremony" that took place at Mount Sinai. This ritual included sacrifices, blood sprinkling, the public reading of the "book of the covenant," and the nation's absolute acceptance of the terms of this covenant: "all that God spoke we will do and obey" (24:7).
A question immediately arises concerning this chapter's relationship to chapter 19, which describes the events leading up to God's Revelation at Sinai. There, too, the people declare their commitment to obey God's laws (19:8), and, in both that account and ours, the nation beholds God's descent onto the mountain (compare 19:11,16,18 with 24:10,16,17). Do these two accounts describe the same event? If so, then why did the Torah not merge them into a single chapter?
This issue was the subject of dispute between the commentators. In his treatment of this question, Abarbanel observes that this argument divided along geographic lines, with the Ashkenazic writers taking one position and the Sefaradic exegetes the other. In any event, this dispute is commonly seen as one between Rashi and Chazal on the one hand, and Ramban on the other (with Ibn Ezra and Seforno siding with Ramban). Rashi argues that the two chapters both describe the events leading to the Revelation. Chapter 24 thus appears out of chronological sequence, as it in fact took place before the presentation of the Ten Commandments recorded in chapter 20. Ramban, by contrast, prefers taking these chapters at face value and reading them in the sequence in which they appear. Thus, the covenant ceremony took place after the Revelation.
On one level, this debate touches upon many interesting technical issues of exegesis. In their respective approaches to this chapter, Rashi and Ramban consistently follow their general attitudes towards viewing the Torah's narrative as arranged out of chronological order. Whereas Rashi does not hesitate to employ this technique throughout the Chumash, Ramban generally avoids doing so. According to the Ramban, we must assume chronological sequence in the Torah's presentation unless we find explicit indication otherwise. On the literary level, Rashi and Ramban argue as well about the meaning of the word "va-yesaper" ("he related") in 24:3. The verse reads: "Moshe went and related to the people all the commandments of God and all the laws… " According to Ramban, these "commandments" and "laws" refer to the Ten Commandments and the laws presented in the first half of Parashat Mishpatim. Rashi, however, maintains that this entire episode occurred before the revelation of the Ten Commandments and Parashat Mishpatim. He must therefore explain that Moshe here repeats to the people the commandments and laws that they had previously learned, such as the required preparatory measures for the Revelation (19:10-13) and the laws transmitted in Mara (15:25). Ramban argues that the verb "va-yesaper" can refer only to the relaying of new information, rather than the review of previously studied material. Thus, Moshe here must be conveying laws not yet studied by Benei Yisrael - those described in the previous chapters of Parashat Mishpatim. Rashi maintains that "va-yesaper" may denote as well the review of old information.
On a more fundamental level, both of these approaches give rise to the same question. Be it in actuality or just in narration, the two basic components of the Sinai experience - the Commandments and the covenant - are set apart from each other. According to Ramban, the two events actually occurred at different points. According to Rashi's position, the Torah deliberately separated these two events, though historically they together comprised "Ma'amad Har Sinai." How can we understand this division between what appear as two integral, equal components of the Revelation? Regardless of which position we adopt, how can we explain the line drawn between Commandments and covenant?
The Maharal of Prague (sixteenth century), in his supra-commentary to Rashi entitled "Gur Aryeh," cryptically explains why, in Rashi's view, the Torah reversed the chronological sequence of events:
The reason that it was not written before the giving of the Torah, in [chronological] sequence, is because this entire covenant was about the Torah that they would receive the following day. As all these activities [performed as part of the covenant ritual] were for the Torah, the Scripture arranged in its proper place, for this was performed with respect to the Torah. If it were possible to perform these activities and receive [the Torah] simultaneously, he [Moshe] would have done so. But as this was impossible, the activities took place first; but in the Scripture it is recorded in its place, after the giving of the Torah.
Ironically, the Torah separates the covenant from the Revelation specifically to underscore their inherent connection to one another, to emphasize the covenant's association to the Commandments. Were the Torah to have recorded events as they transpired, the true meaning of the covenant would not have been clear. More accurately, that the ritual described in our parasha marked the nation's acceptance of the laws transmitted at Sinai would not have been adequately stressed. The Torah seeks to impress upon the reader the nature of the celebration illustrated in chapter 24, the true meaning of a covenantal ritual: the acceptance of the divine creed. The ceremony depicted in Parashat Mishpatim is indeed a festive one: "they beheld God, and they ate and drank" (24:11). So as to emphasize the source and basis for this joy, namely, the nation's wholehearted acceptance of God's laws, the Torah first recounts the transmission of a sampling of these laws before describing the festive ritual of the covenant.
One who accepts this explanation for Rashi's position could easily apply it to the Ramban's view, as well. Though we would have expected the formal covenant to be finalized before Benei Yisrael experience divine revelation, God reverses the order. They must first hear, see, and understand that which the covenant entails before conducting the ceremony consummating that covenant. The relationship with the Almighty into which they now enter involves far more than an abstract, experiential bond; it relates to the totality of the demanding corpus of Torah law.
Rabbi Menachem Leibtag suggests an alternate explanation for the separation between these two components of the Sinai experience. The Torah may have separated one from the other precisely to underscore their fundamentally different natures. The word that best describes the Revelation as recorded in chapters 19 and 20 is fear. The verses vividly describe the awesome display of fire, cloud, smoke and thunder that enveloped the mountain and sent the people into panic (19:16,18; 20:15). Parashat Mishpatim, by contrast, describes a far less imposing atmosphere. Whereas in Parashat Yitro the masses retreat and beg Moshe to serve as their intermediary, here even the "young men among the Israelites" (24:5) take an active role in the sacrificial ceremony. Not only do the people express no fear as they behold God's glory, but they "eat and drink" all throughout (24:11). The Sinai experience thus consists of two conflicting but complementary features. On the one hand, it brings Benei Yisrael to the most intense level possible of "yirat Elokim," fear of God, to the point where they are sure they could not survive: "They said to Moshe, 'You speak to us, and we will obey; but let not God speak to us, lest we die'" (20:16). Moshe responds, "Be not afraid; for God has come only in order to test you, and in order that the fear of Him may be ever with you, so that you do not go astray." At the same time, the Revelation is a moment of intense "ahavat Hashem," love of God, where the Almighty and His people become eternally bound by mutual love and devotion. Indeed, several passages in Midrashic literature liken this event to a wedding ceremony between God and Israel.
By separating these two events - again, either in actuality or narration - the Torah emphasizes the independent value it ascribes to both aspects of a human being's relationship to his Creator. In our liturgy we often address God as "Our Father, our King," accurately expressing the dual nature of this most complex relationship. Revelation - be it the overt, prophetic manifestation of Sinai or the simple communion one is intended to achieve through prayer - is a frightening experience. The undeserving beholder, who enters God's presence without adequate preparation or merit, has trespassed the sacred grounds and violated His royal honor. Yet, God's very willingness to "reveal" Himself is an act of fatherly love and kindness. While Parashat Yitro tells of the King visiting the countryside to impose His authority and edicts upon His subjects, Parashat Mishpatim describes the intimate union of Father and child, with love rather than fear, celebration rather than intimidation, and festivity rather than dread.