Thoughts on Mishpatim, Laws, Morality, and Using Intelligence

By Rabbi Dr. Israel Drazin

BOCA RATON, Florida — The weekly Torah portion of Mishpatim begins with laws concerning an eved ivri, translated “Hebrew Slave.” But the term is not explained. It continues with laws when a man sells his daughter as a slave, a death sentence to a person who kills another, the law of an accidental killing, the rule that holding on the altar does not protect a murderer, striking a father or mother results in the death penalty, So does kidnaping, insulting parents, injures are punished “an eye for an eye,” and many more. The rabbis changed all of these listed laws.

• The first set of laws given to the former Israelite slaves was the Decalogue, a brief listing of basic teachings. In the early history of Judaism, the Decalogue was so esteemed by Jews that it was placed in mezuzot and recited daily with the Shema. The rabbis in the Babylonian and Jerusalem Talmud Berakhot 12a and Berakhot 1:5 abandoned this practice. Scholars explain that they did so because Christians extolled the Decalogue as the only legal authority of the Torah. The Decalogue was followed at the end of the Yitro portion of a law to worship God simply and modestly. Verses 20:19-23 instruct the Israelites to make an altar of earth or simple unhewn stones and use it for sacrifices of sheep and oxen. There is also an order not to ascend the altar by steps because lifting feet on steps will expose nakedness. A large number of laws in the portion of Mishpatim follow these commands.
• Remarkably, the first law deals with an Israelite enslaving a fellow Israelite and the law of an Israelite father selling his daughter to another Israelite. What does this tell us about these former slaves? Should we have expected them to declare, “Free at last, free at last, thank God we are free at last,” and then speak about freedom and creating a society where all people are free? Isn’t this another example showing that it is hard for people to give up ideas they have had?
• Doesn’t it also show that people can be so traumatized by an experience that it affects their future lives? An example is soldiers today who were involved in combat and suffered mentally when they returned home.
• The term “mishpatim” is not defined. What kind of law is it? How does it differ from a chok, din, Torah, and other types of laws? Is it possible they are near synonyms, and each refers to law?
• For example, the word mishpatim has as its root sh-p-t, which means “judge.” Thus, the word can be translated as “judgments,” suggesting laws that result in judgments. Chok means “decree,” din “law,” and Torah “lesson.”
• Why did the rabbis define chok as a law with no known reasonable basis? They gave the law of the Red Heifer as an example. In contrast, Maimonides said all the biblical laws make sense and explained the Red Heifer rule. Were the rabbis trying to make the general public comfortable with the regulations they could not understand by saying God has a good reason for them that we do not know?
• Rashi states that V’eleh mishpatim begins with the Hebrew letter vav, which he translates as “and,” and contends that the letter informs us that just as the Decalogue was given at Mount Sinai, so were the laws in this weekly portion. He treats the usage of this vav as having unique theological implication. He ignores what we wrote previously. “The Torah is divided by the ancient rabbis into 54 portions called parashas, “portions” in Hebrew, so that the entire Torah can be read by Jews yearly. There are eleven portions in Exodus. The first letter of ten of the eleven is the Hebrew letter vav, usually translated as “and.” Is this translation correct for the opening of most portions? Would the translation “now” be more appropriate? Perhaps we should realize the use of the vav in the Torah was the way of speaking when the Torah was composed, adds nothing to the meaning, and ignores the letter when we translate the Bible into English.” Why does Rashi give the letter a theological interpretation?
• Is it because the rabbis recognized that while what they were saying was not true, it is like saying that God becomes angry when we misbehave, even though God has no emotions? We tell the general population that God becomes angry to frighten them into behaving. It is what Plato called a “noble lie” and Maimonides an “essential truth.”  The rabbis felt the general public needs to be told in various ways that the laws were given to us by God, who loves people and wants to help them.
• Why did the rabbis change all the laws listed above? Is it because these laws were appropriate for the generation of freed slaves but no longer appropriate?
• Isn’t the purpose of laws to give people rules they can understand and handle to help them be all they can be and do the same for society?
• While the Torah allows the continuation of misguided behaviors such as slavery because of the mindset of the ancient people when the laws were promulgated, the rabbis understood that the Torah wanted better behavior. Therefore, they ruled, for example, that the Hebrew slave mentioned in the portion was a fellow Jew who was a robber and needed to repay the money he stole, money he did not have. He is sold as a slave to repay the theft, but for no longer than six years. And if he had a wife, the purchaser was obligated to support the wife during the years of servitude.
• If the slave wanted to remain in slavery beyond the six years, this was permitted but frowned upon. The slave had to appear before a court that would try to persuade him to give up his idea. If he refused, his ear was pierced at the door post so that whenever he entered the house, he would be reminded by seeing the mark on the door that God wants people serving Him, not fellow humans. The rabbis found other anti-slavery rules later in the Torah.
• Examples of the Torah’s attitude toward slavery is the law that no Israelite slave, even one sold by the court to repay what he stole when he lacks the money to do so, can serve for more than six years. Verse 21:1-2 states he goes free without needing to pay more, even if the court could not acquire the full restitution. In 21:4-6, a master is allowed under certain conditions to give his male slave a wife and keep the wife and their children as enslaved people when the husband goes free. But, as indicated above, it permits the slave to remain with his wife and children and not leave. In 21:26, if a master harms a male or female slave’s eye or tooth, the slave is freed. This was because the Torah considered enslaved people human beings, not property.
• Among the “marital rights” for wives in 21:10 is the husband’s obligation to have intercourse with her. This ensured that even in polygamous families, no wife would be neglected.
• In many societies, the altar was not only a place of worship but also a place of asylum. This dual function is captured in the double meaning of “sanctuary.” But reflecting the Torah’s desire to minimize the significance of the temple, 21:14 disallows the altar to give criminals refuge.
• The rabbis interpreted that the selling by a father of a daughter involves a father giving his underage daughter in marriage to another man. He may not do so to a daughter who has begun a menstrual cycle. The money is, in essence, a dowry. If the purchaser decides not to take her as a wife after the purchase, she goes free when she has menstrual cycles, after six years with the man, or the jubilee year, whichever comes first. The purchaser may not give her to another man because she is not like cattle, or return her to her father because he mistreated her by selling her. The purchaser may give her to his son as his wife. She must be treated as any other wife.
• The rabbis in the Babylonian Talmud Baba Kama 84 state that despite the Torah penalizing a man who strikes another, “an eye for an eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe,” the penalty is not inflicting the attacker with the same physical damage but different kinds of monetary payments in an equitable manner, money for the actual injury, the loss of time, the cost of the cure, the pain, and disfigurement. Some commentators insist that the money payments are implied in the Torah itself or that the monetary payments are part of the oral law that was given at Mount Sinai. Both views contend that God made it clear that only money payments were demanded.  Others say it was the rabbis who changed the ancient harsh treatment.
• Why did those who insisted that despite the wording, it was God, not the rabbis, who interpreted the words? Did they feel it essential to say that the oral law is divine? Why do they need to believe in the divinity of the oral law?
• What is the relationship between laws to morality and the use of intelligence?
• We can understand the relationship by understanding (1) the parable of the act in the Garden of Eden, (2) the biblical practice of saying part of a matter in one place and finishing it in another site, and (3) placing a fence around a law.
• As Maimonides explains in his Guide 1:1 and 1:2, God gave humans intelligence that they should use to decide how to act. The story of humans misbehaving in the Garden of Eden is not true. It is a parable designed to teach a lesson about using one’s intelligence. It is clear that it is a parable. Snakes do not talk. Children are not punished as in the story for acts committed by their parents. The punishments in the tale are excessive to make the point that the actions were extremely foolish.
• The biblical practice is to say something briefly the first time it is mentioned and elaborate upon it later. Examples include the Bible instructing Noah to take a pair of all land and air animals into his ark but later adding that certain animals were to be seven in number. Another oft-misunderstood example is that Genesis one states that God created a man and woman, while chapter two relates how it was done. Many scholars and rabbis do not know the biblical practice and think there are two versions of the story.
• In the parable, Adam is told not to eat from a particular tree. Later, Eve states she was also told not to touch the tree. Again, many who do not know the biblical style think Eve has a different version of the divine command. The Torah tells us that the order included not touching the tree.
• Why was the second command not to touch the tree given? This, too, is part of the biblical practice. It is called placing a fence around the Torah so that Jews do not even come close to violating the law. The rabbis even extended this practice. An example is the rule of muktzah. On Shabbat, Jews are told, as the first humans in the parable, that they should not even touch an object forbidden to use on Shabbat. This “fence” protects the Jew from violating the Shabbat.
• In the parable, Eve misunderstood why she was not allowed to touch the tree. She thought she would be punished for either touching the tree or eating the fruit of the tree. She did not know that the prohibition of not touching the tree was meant to help her not eat the fruit. She failed to think appropriately and felt nothing was wrong with touching the tree. When she touched the tree and was not punished, she thought she would not be penalized for also eating the fruit, and she ate it.
• What does this parable teach? It tells us that the ideal is that humans should make decisions in their lives after carefully using their intelligence. The problem is that virtually all people are unable to do that. To help people, rules of morality were developed. These rules are safeguards. They are not perfect, but they usually help people live a good, enjoyable life and generally help society.
• They are not perfect because they generally set very sensible rules, but not always. For example, we are told not to cross the street when a light is red. But sometimes it is reasonable to do so, such as when it is clear that there is no traffic coming and the individual needs to cross the street quickly to use the bathroom on the other side. It is better to use one’s intelligence in this situation. Specific moral laws also do not fit every culture. The former Israelite slaves in this week’s biblical portion were certain slavery and selling daughters is moral. People like Eve in the parable also see why the moral rule does not apply in their situation and act like Eve without making an intelligent assessment. Yet, as imperfect as it is, morality is the best system for people.
• Midrash Tanhuma offers an imaginative interpretation of Exodus 23:20, God promises, “Know that I am sending an angel to keep you on the way and bring you to the place I have prepared.” The Midrash states that God is informing the Israelites that He prepared a temple in heaven that corresponds to the temple on earth. Precisely what the Midrash is contending with is unclear. There are various interpretations. But what is clear is that the Midrash considers the temple significant. Is the Midrash correct? Is the temple a substantial part of Judaism? Isn’t the temple the place of sacrifices that Maimonides says God neither needs nor wants? It is a concession to human needs. If we had the opportunity to build a third temple, should we do so?
• Verse 24:9 states, “Moses and Aaron, Nadab and Abihu, and seventy of the elders of Israel (ascended Mount Sinai) and they saw the God of Israel.” Rashi states, “They saw and gazed and were doomed to death; however the Holy One Blessed Be He did not desire to disturb the happiness concerning the Torah, so He delayed the punishments of Nadab and Abihu and the elders.”  He killed them a little later. He did not kill Moses and Aaron. Why were they killed? What did they do wrong? Why were Moses and Aaron not killed? They also supposedly gazed at God. Even more significantly, isn’t it impossible to see God? How do we interpret this episode? Rabbi Lord Jonathan Sacks in The Koren Tanakh of the Land of Israel, Exodus, solves part of the problem. He translates, “They saw a vision of the God of Israel.” But if they only saw a vision, why were they killed?
• Mentioned previously were ways the Torah tells its stories. Another one is that the Torah does not always follow chronological order. Thus Rashi to 24:1, relying on Midrash Mekhilta, states that the events recorded at the end of Mishpatim occurred two days before the revelation of the Decalogue. According to Rashi and others, the gazing at God in 24:9 happened before the revelation. Also, Moses told the people many laws before the revelation of the Decalogue, and the people “answered with a single voice saying ‘all the words that the Lord said we will do.’” Nachmanides (Ramban) disagreed in his commentary on 24:1, and Rashbam (Rashi’s grandson) on 24:1-3. They and others insisted that the events occurred in the order in which they were written. What difference do the two views make?