file Musings on Parshat Mishpatim

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1 year 9 months ago #719 by Heshy Berenholz
Musings on Parshat Mishpatim was created by Heshy Berenholz

 Contains 23 positive commandments and 30 prohibitions broadly categorized into rules of civil legislation; offenses against property; and moral offenses …
o Laws of Hebrew slave and Hebrew maidservant
o Assault, kidnapping and murder
o Negligence and theft
o Four types of guardians
o Illicit and idolatrous behavior—seduction, sodomy, witchcraft, polytheism
o Oppression of the weak
o Helping the unfortunate
o Loans and pledges
o Respecting leaders and judges
o Offering of first fruits; redemption of firstborn
o Not eating torn off flesh of a live animal (t’rayf)
o Judicial Laws; truth in Justice
o Impartiality in Justice
o Keeping away from anything false; anything that promotes falsehood; half-truths; and misleading innuendos
o Sabbath year and Sabbath day
o Three annual pilgrim festivals
o Dispersion of enemies
o Conquest of Land
 Ratification of Covenant with God
 Moshe ascends Mt. Sinai for forty days

Structure of the Parsha

The Torah presents us with a detailed listing of the guidelines and regulations necessary to insure a healthy, ethical, thriving society.

The important themes encountered include…

 Kindness to others, especially those people we dislike
 Respect for parents—not cursing or striking them or thinking of them as “lightweights”
 Monetary damages for bodily harm, not physical retribution
 Managing of assets so as not to harm others
 Avoidance of both idolatry and association with pagan nations
 Being especially caring to widows, orphans and converts
 Maintaining the integrity of the judicial system: not favoring one party and not accepting bribes

Worship of God is defined by behavior between Man and his fellow Man. Rabbi Menachem Leibtag perceives this lengthy set of laws dealing with inter-personal relationships (that enable us to achieve our mandate of living a life of both Tzedaka and Mishpat) as being sandwiched in between a matching set of “bookend” regulations that discuss the proper worship of God. God had chosen our forefather Avraham in order that he and his offspring “keep the way of God to do Tzedaka and Mishpat”. Having entered a Covenant with God at Mt. Sinai, the nation is expected to live by these values.

One bookend consists of the laws relating to idol worship and building of an Altar (at the end of Parshat Yisro). The closing bookend consists of the laws of the three pilgrimage holidays (listed towards the end of this week’s Parsha). “Sandwiched” in-between is a…

 Layer of civil laws (case law) for the Bet-din (Court) to decide, ranging from capital offense to accidental property damage. Mishpat (judgment) involves people coming to court to resolve a dispute that can only be settled by a shofet (judge). These individual laws begin with the Hebrew word “ki”, meaning “if” or “when”.

 Buffer of several laws between Man and God that paves the way for rules of ethical behavior.

 Layer of ethical laws that define Tzedaka (righteous behavior). These rules, presented in the imperative style (i.e., do …or don’t), that are beyond the jurisdiction of the Court demand that we act in an ethical manner in all our activities. God’s treasured nation is held to a high moral standard of behavior.

Many of the laws presented are details and/or expansion of the Ten Commandments. They are the concrete manifestation of values that the nation of Israel is called upon to live by and to spread. The Daas Mikre maintains that although there is no tight connection between each of the laws cited, it is possible to ascertain a loose link.

The opening laws relate to a Hebrew slave and echo the First Commandment’s reminder that God took us out of the House of Slaves (Egypt). Therefore, we need to be especially careful in how we treat slaves.

The next set of laws deals with murder and reiterates the Sixth Commandment. Next come a few instances of behavior that, although not murder, carry the death penalty, like striking one’s parent. Striking others comes next, followed by “striking by speech” (i.e., cursing a parent). Since curses emerge from arguments, the next laws deal with fighting and injuring and causing bodily harm.

Human actions causing damage are followed by laws about one’s possessions that cause damage—an ox that gores a person and then an ox that gores another ox. This leads to laws about stealing an ox. Living possessions can cause damage but so can setting a fire. The text returns to issues of robbery by discussing the several types of guardians and how they need to be dealt with should robbery occur on their watch. Seduction of a virgin is a kind of damage and its laws follow next.

The next section, focusing more on issues between Man and God, deals with idolatry, often manifest in the form of occult practices. (Sorceresses and other practitioners sometimes involved themselves in the seduction of single women and may have engaged in bestiality). Because they have abandoned idolatry, proselytes must be treated especially well. The same holds true for widows and orphans.

Because the proselyte, the widow and the orphan may experience financial hardships, the Torah promotes interest-free lending and presents rules assuring fairness when dealing with collateral. The observation that failure to help the downtrodden will cause them to cry out to God segues into laws relating to God --- not cursing His representatives on earth (judges, leaders) -- and then laws about offerings to God.

“Be holy to Me” includes…

• Not eating meat torn from a live animal
• Behaving fairly and honorably in court
• Helping a person (even if he is your enemy) when you see his animal carrying an unduly heavy load
• Avoiding falsehood and bribes
• Observing the shmittah year in a way that allows for food for the needy

Mention of shmittah, the seventh year, leads to discussion of the Sabbath, the seventh day of the week, which in turn leads to discussion of other holy days on the calendar. Because of the insidious threat of idolatry, mention of its avoidance is interspersed among the laws, including the prohibition of cooking a kid in its mother’s milk.

A Progressive Step Forward for Mankind

The impact and progressive nature of the commandments and prohibitions presented can best be understood in the context of society as it existed at that time…

• Slavery existed throughout antiquity and the newly-freed-from-slavery Israelites were warned to treat slaves as humans, not chattel.
• In ancient societies, the altar was considered a place of refuge for a murderer. The Torah’s view is that there is no asylum for a murderer anywhere.
• Prohibitions of striking and insulting parents stand in contrast to prevailing societal attitudes then (and even now!) relating to treatment of parents
• Building society, limiting revenge and curbing bloodthirsty behavior are manifest in the laws requiring financial restitution for bodily injury; establishment of an honest court system; and aiding even one’s enemy in his times of need.
• Stealing in all forms is prohibited and fines were developed to compensate victims for their losses based on the importance of and value of the stolen object
• Protection of the weak and vulnerable in society is a hallmark of Jewish Ethics.
• Idolatry and cult worship, rampant in ancient times, are repeatedly outlawed in many obvious and even less obvious ways.
• Prohibition of working on the Sabbath (a radical, unheard of and often mocked idea) is stressed as a humanitarian effort, a respite for a person, his servants and his livestock.
• Need to fully integrate religious behavior (right side of Ten Commandments) with interpersonal daily living (left side of the Ten Commandments).
• Genuine religious observance cannot be achieved by aggressive sexual and/or violent behavior.

Rabbi Jonathan Sacks notes the sudden shift in the style of the Torah text. Until now there was a sweeping and dramatic narrative of the Israelites’ experience in Egypt and then their redemption from Egypt. But now we are presented with a wide range of detailed and complicated laws to live by. The genius of the Torah is “to translate historical experience into detailed legislation, so that the Israelites would live what they had learned on a daily basis…. vision becomes detail and narrative becomes law.” Narrative tells us what happened to us; who and what we are. The body of law with all its detail concretizes the vision and turns it into reality.

Rabbi David Fohrman, analyzing the words in the text, traces some of the laws presented to us as a nation to our earlier history of families and individuals. These laws are intended to help avoid repetition of those earlier, potential sins.

The saga of Yaakov and Eisav offers an enlightening example. Regarding manslaughter (unpremeditated) the Torah states “V’asher lo tzada…v’samti lecha makom asher yanus shama” [“If he did not plan to kill his victim but God caused it to happen, then I will provide a place where the killer can find refuge”.]

The first time the Torah uses the root-ward of tzada is in relation to Eisav, who is described as “tzayid b’fiv”, a hunter who brought food to his father Yitzchak. Regarding murder, the Torah states “V’chi yazed ish…” [“If a person plots against his neighbor to kill him intentionally, then you must take him even from My altar to put him to death.”] We first encounter the root word yazed when “v’yazed Yaakov nazed” [“Yaakov was once simmering a stew”].

Yaakov acted deceptively but not maliciously when he tricked his father (with the help and encouragement of his mother) into granting him the blessings. After he discovers Yaakov’s actions Eisav plots against his brother. He is filled with malice and hatred for Yaakov for a long time, even though he never lands up murdering him.

The Torah’s choice of words that echo these past events suggests the desire to avoid/prevent/deal with, what might have been an alternate tragic outcome had one brother murdered the other.

On Insulting or Cursing One’s Parents

If one behaves this way, “mos yamus” [“he most certainly will die”]. The phrase means that one will be punished by God since the Court cannot deal with those crimes committed in private. One who is M’kallel aviv v’emo (vilifies, demeans or makes light of his parents—from the Hebrew word “kal”, meaning “light”, embedded in the word, “M’kallel, which means “curse”) is punished during his lifetime. Treating one’s parents in a disrespectful way, considering them “lightweights”, and not coming to grips with one’s feeling/conflicts can lead to a kind of inner death (neurosis/psychosis); a conflicted emotional state of mind; and “something inside of him dies” that is the modern-day manifestation of “mos yamus”.

Guila Kotler notes that the word kal stands in contrast to the word caveyd (which means “heavy”) when used in the commandment to honor one’s parents (“cabeyd es a’veycha v’es emecha”).

Loving the Stranger

We are commanded to exercise self-control, just when the temptation of the powerful to take advantage of the weak (proselytes, widows and orphans) is the greatest. This contrasts with ancient nations like Egypt that hated and/or feared strangers and Greece that referred to non-Greeks as barbarians.

So important is this behavior toward strangers that the Torah cautions us thirty-six times (or forty-six times. according to another opinion in the Talmud!) Rabbi Dr. J.H. Hertz explains the need for this constant exhortation in psychological terms. It is because “those who have been downtrodden frequently prove to be the worst oppressors when they acquire power over anyone.”

The prohibition of oppression refers to verbal as well as physical abuse. The Talmud states that if a proselyte comes to study Torah we are prohibited from saying words like “the mouth that has consumed forbidden meats, vermin and crawling things has the audacity to study the Torah given from the mouth of the Almighty”.

The reason offered in our Parsha for the prohibition of causing hurt and oppression to a stranger is “for you were strangers in the land of Egypt” and presumably know firsthand how it feels to be treated like a stranger. Furthermore, should one be tempted to oppress and maltreat the helpless, God promises that He will respond to the pleas of the stranger and will harshly punish the persecutor. The Talmud adds its concern that insults could trigger a relapse into idolatry.

Rabbi Sacks explores the question of the comfort felt within one’s own social group versus the fear/antipathy that a social group feels towards strangers. In some respects, we humans are like tribal animals who are easily threatened by members of another tribe. “The greatest crimes of humanity have been committed against the stranger, the outsider, and the one-not-like-us.” [The Greeks viewed non-Greeks as barbarians. Nazi Germany considered Jews vermin, lice and a cancer in the national body.]

Particularly during times of societal change and social disruption our emotional armament of empathy, sympathy, knowledge and rationality fail us in our relationship to strangers. Comes the Torah and reminds us that we were once strangers and our experience in Egypt was life-changing. “Having lived and suffered as strangers, we became the people commanded to care for strangers”.

“Ayen Tachas Ayen” (“An Eye for an Eye”)

Throughout history, this Biblical rule has been cited to justify cruel retributive behavior used by critics against Jews to show the (alleged) barbaric behavior of Jews and of the Torah (in contrast to the Christian ethic of “turning the other cheek”).

But the Rabbis clearly understood this law to mean monetary compensation. (The phrase most likely is a legal term for damages.) The punishment needs to be commensurate with the crime and if the meaning is to literally blind the offender, inequitable outcomes could result. For example, if the offender died during the removal of his eye, he would have lost both his eye and his life for poking out only one of the other person’s eyes. An injustice will occur if the offender was already blind in one eye and his good eye is to be removed because he will be left totally blind while the victim still has one good eye. How is one punished for causing partial loss of eyesight in one eye?

Rabbi Benno Jacob finds the key in the word tachas, since that word’s use in other places in the Torah can only mean approximate, or substitute for. For example, during the Akeda story Avraham offers a ram “tachas b’no” not an identical, not an exact equivalent, but something that is “in place of” or “instead of” his son. Therefore, tachas can only mean something monetary that is a substitute for (or an approximation of) the value of the eye but not the eye itself. Under Torah law, retribution for physical damages means monetary compensation, except in the case of intentional homicide.

Rabbi Joseph Telushkin notes that “based on the earliest known Jewish records, Jewish courts did not blind those who deprived others of sight”. Robert Alter indicates that monetary compensation for these physical damages was widespread in ancient Near Eastern codes.

Rabbi Gunter Plaut thinks that the intention of this progressive advance in criminal law may be to limit private revenge, particularly in family and tribal feuds. These laws try to blunt the bloodthirsty search for revenge characteristic of primitive family and tribal feuds, and to build a functioning and civilized modern society.

On Stealing

Unlike any other legal system, the Torah appears less concerned about jail time for the thief than with aiding the victim and discouraging stealing.

The thief is obligated to return the stolen object and then to pay the victim a 100% fine. If an ox or sheep is stolen, the fine is four and five times the value, respectively, reflecting the importance of these animals in an agrarian society.

Rabbi Telushkin cites a later parallel in nineteenth century America when horse thieves were punished more severely than other robbers, because of the greater personal suffering experienced by the victim who was left with no means of transportation.

Stealing a person (kidnapping) with the intent of selling him into slavery is considered a capital crime, punishable by death.

On Charging Interest

“If (or when) you lend silver to any of my people, especially to the poor with you, you shall not be a creditor to him. You shall not impose on him neshech (interest)”

In the agrarian society of the Torah lending money to a fellow Jewish farmer [who was considered family] was an act of philanthropy—and not a business proposition—that provided the farmer with the necessary working capital to purchase supplies. The loan would be repaid after the crop is sold. The reference to the poor in the prohibition to not act like a creditor suggests that the text is referring to personal loans only. Bible scholar Professor Michael L. Satlow argues that the Rabbis of the Mishna, living in a Hellenistic world, expanded the prohibition to business loans because they were influenced by the Greek antipathy towards interest in any form. Indeed, for Aristotle, “interest of any kind is unnatural and morally suspect”.

The intent of the mitzvah is to emphasize our obligation to our co-religionists. A shared history and outlook create a unique relationship which is evidenced by the obligation to lend to our fellow Jews interest-free. Such loans demonstrate an extra level of compassion and responsibility for the welfare of our brethren. Therefore, this prohibition does not apply to a non-Jew. Rambam asserts that it is obligatory to charge interest on loans to non-Jews.

Rav S.R. Hirsch reasons that the ban on interest belongs in the category of sins between man and God. It is about an excessive [and false] sense of ownership that may prompt one to refuse to lend money to others in need unless accompanied by profit. But one who truly appreciates and understands that it is God who has the ultimate ownership would act differently. Since the crime is not about victimhood, both lender and borrower share in the violation. Some suggest that the interest is a form of servitude, but of a financial type. A no-interest loan is a more dignified relationship between the parties.

The Lubavitcher Rebbe explains that lending money for interest brings in revenue without any physical effort. This stands in sharp contrast to the Torah’s approach that to be meaningful “even spiritual revenue must be earned by active involvement.”

With the rise of commercial activity in the sixteenth century, loans developed into sources of capital for businesses. Because these kinds of loans were vital for commercial success and were not the kinds of loans first envisioned by the Torah, efforts were made to find a permissible way to charge interest.

The Talmud discusses an “isko” business arrangement in a partnership. Rabbis in Poland and subsequently in other parts of Eastern Europe created a document called “heter isko”. The essence of this document is to transform the lender-borrower relationship into an investment relationship. The provider of the capital, now a partner in the venture, agrees to limit his share in the profits to the dollar amount of the interest payments. What was once an interest payment is now considered profit. This technical redefinition of the loan as an investment allowed Jewish commercial enterprises to succeed without violating the laws of interest. The banking industry in Israel has also adopted use of this document.

Following is the introduction to a Shtar Isko [Agreement Concerning Interest on Loans] format developed by the Beth Din of America:

“Jewish Religious Law strictly prohibits the paying or receiving of interest on loans made between Jews. However, when monies are advanced during a business transaction, an agreement may be entered, whereby the provider and receiver of these funds are considered equal partners. This partnership is based upon the stipulation that, upon request, every loss must be attested to by two trustworthy witnesses, and all profits verified by oath. All consequent profits and losses are then equally shared. However, to avoid these very stringent requirements, the provider of the funds, under this “Shtar Isko”, agrees to waive his share of the profits in lieu of receiving a fixed percentage of the money advanced. This percentage is then considered profit, rather than interest on a loan. This agreement becomes effective when the receiver of the funds executes a form as set below.”

“You Shall Not Boil a Kid in its Mother’s Milk”

This prohibition, which encompasses cooking, eating and benefiting, is the basis of subsequent rabbinic regulations relating to eating milk and milk products together with meat and meat products. Explanations for this restriction include…
• Avoidance of the magical
• Preservation of the milk-giving ability of the animal
• Preservation of health
• Humanitarian (avoid causing an animal pain)
• Prohibition of mixing of various kinds of seeds and materials
• Avoidance of this act of moral insensitivity(Ramban)
• Meat represents death (the slaughter of the animal) and milk represents life and it is not appropriate to mix death and life
• Avoidance of the negative interaction of opposing spiritual forces. In Kabalah meat (red color) is the physical manifestation of the Divine power of Severity while milk (white color) is the manifestation of Kindness

Rambam suggests that the prohibition is about avoiding idolatry—an opinion supported by recent archeological findings (cited by Rabbi Plaut) that describe a then-prevailing Canaanite sacrificial ritual whose purpose may have been to placate the deity, thereby assuring an abundant harvest.

Support for this approach can be found in the verse itself which begins with “Bring your first fruits to the Temple of God your Lord”. Rikki Zibitt’ s interpretation is that after discussing the worship of God, the Torah immediately, almost in the same breath, contrasts it with a (prohibited) pagan ritual. Furthermore, God seems to be assuring us that the nation will be blessed with prosperity (reminding us of our obligation to “share” it with him, the source). Therefore, there will be no need to engage in a pagan ritual designed to achieve this very end.

The prohibition “You Shall Not Boil a Kid in its Mother’s Milk” appears again twice in the Torah. Later, in Shemos 34:26 the entire verse is repeated verbatim. In Devarim 14:21 the prohibition appears at the end of a verse that prohibits eating nevayla (carcass) because we are considered a holy nation to God. The immediately preceding topics discussed in that parsha deal with…
• Incitement to worship idol
• City of idol worshipers
• The holiness of the Jewish people
• Listing of forbidden foods

Perhaps here we have another example of “free association”. The Torah first discusses the prohibition of idolatry, pointing out that we are a separate, “holy” nation. Then it points out that as part of this holiness we are prohibited from eating certain foods. The subject of forbidden foods leads to the introduction to a pagan ritual that is so insidious and dangerous (cooking a kid in its mother’s milk)
that the prohibition extends not only to eating, but also to cooking and to benefitting.

Sealing the Covenant

[Note: Rashi thinks that this narrative is out of chronological order and some of the events cited took place before the giving of the Ten Commandments. Our presentation follows Ramban and other Biblical commentaries that disagree and read the chapters in chronological sequence.]

After Moshe presents the commandments and prohibitions, the people respond with a single voice, “We will keep every word that God has spoken”. Moshe is called by God to go up to Mt. Sinai but before he leaves he…

 Writes down all of God’s words
 Gets up early the next morning and builds an altar at the foot of the mountain surrounded by twelve pillars for the twelve tribes of Israel
 Directs the consecrated young men (first born who served as priests before Aharon’s sons were chosen) to offer on the altar oxen as burnt offerings and as peace offerings to God
 Takes half of the blood of these offerings and puts it into two large bowls
 Takes one half of the blood and sprinkles it on the altar
 Takes the Book of the Covenant and reads it aloud to the people [Note: Some maintain that the Book included all the Torah up until the giving of the Ten Commandments. Others think that it refers to the laws discussed up until this point. Professor Umberto Cassuto suggests that it was a document in which Moshe had written down the nation’s promise to observe the Torah laws he had taught them.] The people reply “Naase V’ Nishma”— “we will do, and we will obey all that God has declared”
 Takes the rest of the blood and sprinkles it on the people (or on the altar on behalf of the people)
 States that the blood seals the Covenant that God is making with His people

Moshe and his retinue consisting of his brother Aharon; Aharon’s sons Nadav and Aviehu; and seventy of Israel’s elders head up the mountain. There they have an enigmatic vision “of the God of Israel, and under his feet was something like a sapphire brick, like the essence of the blue sky” …God did not unleash His power against the leaders of the Israelites. They had a vision of the Divine and they ate and drank” [the flesh of the peace offerings that they likely brought with them. The eating of a sacred sacrificial meal formed part of the ratification ceremony, according to Rabbi Hertz.]

God then calls Moshe to come up to the mountain (by himself) and remain there where He will give him the stone tablets and the Torah and the commandments that He has written to be taught to the people. When Moshe reaches the mountain top a cloud covers the mountain. God’s glory rests on the mountain (Sinai) for six days and on the seventh day Moshe is called into the cloud on the mountain where he is to remain for forty days and nights. The glory of God is described as a “devouring flame”.

Rabbi Sacks discusses the difference in the wording of the nation’s three-time ratification of the Covenant. The first two times they respond unanimously--“together” and “with one voice” -- that they will do whatever it is that God says. We are a religion of deed. Acting, doing comes first and lays the groundwork for insight. After Moshe read to them from the written Book of the Covenant they add that they will not only do but that they will also “nishma”— listen or hear or absorb or seek “the spiritual, inward dimension of Judaism”.

When it comes to doing there is a unanimous, authoritative code of behavior (Halacha) which all agree to follow. But when it comes to spirituality, and how to think and feel as a Jew, there are many approaches:

Some find God in Nature
Some find Him in the prophetic call
Some find Him in prayer or in joy and dancing
Einstein found God in the “fearful symmetry and ordered complexity of the universe”.

Rabbi Sacks concludes that while we do Godly deeds together and respond to His commands with one voice, “… we hear God’s presence in many ways, for though God is One, we are all different, and we encounter Him each in our own way.”

Because of the enormous emotional trauma that the nation of Israel experienced at the Revelation at Mt. Sinai, it took hearing Moshe’s words twice before they could get to the point of being able to “nishma”. It was the learning process of a child being introduced to innovative ideas. It was only after Moshe read to them from the Book of the Covenant, a concrete and authoritative compilation of God’s manifestation, that the people could think about and explore the meaning of the words and the events to which they had been exposed.

Rabbi David Warshaw reasons that it took the building of the altar and the twelve pillars for the people to feel liberated and purified enough to be able to progress to this deeper relationship with God. [Note: Rabbi Meir Soloveichik notes that it was the Mishkan, with its altar and vessels, that completed and embodied the Covenantal nature of the relationship between God and His people.]

“And they saw the God of Israel. And under His feet was like a configuration of sapphire brick…And they beheld God and ate and drank.”

The enigmatic vision shrouded in mystery cries out for interpretation. One approach is that they did not “see” God but that they may have fallen into a trance-like state in which they had the insight that they were standing in His presence. Allegorically God’s “feet” are the attribute that meets the level below (just as one’s feet meet the ground).

God is often portrayed as a King sitting on a throne. The imagery of His footstool portrayed as a brick links to when the Israelites were in Egypt having to make the bricks for construction. The text is communicating to us that these leaders on Mt. Sinai realized again that God had been with them even during their trying times in Egypt. The sapphire is blue, and they may have seen a vision of the blue sky as being below God. The Hebrew root-word for sapphire is related to the word for “wisdom” and to the word for “book”. This vision may have been a transmission of insight and knowledge of Him.

The brick in the vision is described as giving off a dazzling bright light that had the purity of the upper spheres. The symbolism here is that despite their backbreaking slavery experience in Egypt, the Israelites maintained an inner purity and connection to God. The brick that was associated with slavery is transformed into a representation of clarity, of joy, of light and of liberty.

The leaders are not punished for what they “saw”. Instead, their encounter with the divine seems to have completed a stage in the ratification of the Covenant that was cause for festive celebration with the eating of the flesh of the peace-offerings and with drinking.

Yehuda Halevy, cited by Rabbi B.S. Jacobson, points to this being a lower level prophetic state vis-à-vis Moshe. Although they partook of the Godly splendor they still had to go on eating and drinking. Unlike Moshe who when he went up to God, subsisted for forty days and forty nights without any nourishment.

Ramban cites this episode as the basis for the custom to celebrate the completion of the study of a unit of Torah with a festive meal.

Rabbi H. L. Berenholz

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