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D'var Torah: Mishpatim

I got myself into doing this d'var in an unusual way. I didn’t simply agree to a date and then find out what the parashah was. Rather, this particular parashah had long fascinated me. And when I taught Exodus last year in the religious school, my fascination grew.

In many parts of the Torah, one must carefully read between the lines in order to grasp the intended moral lesson. But this parashah is very explicit in telling us how to behave. Not only are these rules very explicit, they are also very abundant and touch on almost all aspects of how people should behave toward others. Thus this parashah is a foundation of our people’s moral code. But what has also fascinated me about this parashah is the conflicting reactions I have had to it.

In this parashah, we immediately see a great concern with the poor and the vulnerable:

You shall not ill-treat any widow or orphan.

You shall not subvert the rights of your needy in disputes.

Leave your field to rest in the seventh year and let the needy of your people eat from it.

If you lend money to the poor, do not act as a creditor, exact no interest from them.

If you take your neighbor’s garment in pledge, you must return it before the sun sets. It is his only clothing, his sole covering.

In short, right here are many of the passages which form the basis for our historic concern with tzedakah and tikkun olam.

Yet while these passages provide an important inspiration and justification for the activities of the Tzedakah Committee, they are not the whole story. Other parts of this parashah show far less compassion. We see the famous quotation, “An eye for an eye, a tooth for a tooth, and a life for a life.” And even those who find that passage acceptable might have a hard time with the notion that whoever lies with a beast must be put to death. And even though I am now a parent, putting to death someone who insults his mother or father seems extreme.

One can try to resolve the apparent conflict between compassion and harshness by noting that ancient Israel had many features of what cross-cultural social psychologists call a collectivistic culture. Such cultures have very strong emphasis on loyalties to an in-group, such as an extended family or village and sometimes to an entire people. While such cultures show a great deal of concern for the survival and well being of others in the in-group, a great deal of conformity is demanded in return and harsh punishments are administered to those who violate the rules. Group solidarity is not built through allowing people to do their own things. Moreover, such cultures often show little concern for the well-being of outsiders. Consistent with such an interpretation, the Torah has many examples in which God helps the Israelites destroy other peoples, sometimes for no other reason than that they are on land which God has promised to the Israelites.

Many of us are aware that as Judaism has evolved, rabbinic law has shown more compassion, even for wrongdoers, and more concern for non-Jews as well as Jews. What is interesting is that for all the harshness advocated in this parashah, we can also see in it signs of compassion for outsiders and even enemies.

Twice this parashah tells us, “Do not oppress the stranger, for you were strangers in the land of Egypt.” And while it does not tell us to love our enemy, it does say:

...when you see your enemy’s ox or ass wandering, you must return it to him. When you see the ass of your enemy lying under its burden and would refrain from raising it, you must none the less raise it with him.

Aside from the tension between compassion and harshness and the tension between loyalty to ingroup and a more universalistic ethic, I see still another tension. It is the tension between simplicity and complexity. Many of the rules in this parashah are stated without qualification. Those who insult their parents or lie with an animal are to be put to death. The circumstances are irrelevant. Thus it makes no difference if the parents were totally abusive.

However, in other parts of the parashah, we see a rather sophisticated consideration of how the circumstances surrounding an action should make a great deal of difference. In Ex. 21:28 we see that when an ox gores a man or woman to death, the ox shall be killed but the owner shall go unpunished. But in the next verse, we see that if the ox has been in the habit of goring and the owner though warned, has failed to guard it, then the owner and the ox shall be put to death. In short there is a clear distinction made between a tragedy which could not be anticipated and criminal negligence.

Similar distinctions can be found in Ex. 22:1–2, which discuss what happens to a tunneler (i.e., a burglar). If such an intruder is caught breaking and entering at night he may be killed. If he is caught in daylight, killing him would be a crime. I have read that this distinction is based on the assumption that the night burglar commits his crime knowing that people would probably be there and was, therefore, a threat to their lives. On the contrary, if this were to occur in the daylight, where the presumption is that residents are not at home, and there is no similar threat to the residents.

A similar complexity can be found in laws about looking after someone’s property. If I give you goods for safekeeping and they are stolen, you are not responsible. But if it were an animal you are watching, you are held to a higher standard of responsibility and may be held liable for inadequate care of it.

We again see this complexity right at the beginning of Chapter 21, where we are told that after six years a slave shall go free unless he or she does not wish to do so.

Thus, while some of the moral dictums in this parasha seem like the work of simple but stern country folk, others sound as if they were written by lawyers.

In fact, it is quite likely that the ancient Israelites had been exposed to and influenced by the legal codes of the great empires around them. Indeed there is some obvious resemblance between the Torah’s law of retaliation (“an eye for an eye”) and the sophisticated code of Hammurabi.

But there are also important differences. Hammurabi’s code stated that if a noble kills or injures a commoner, he must pay a fine. Only if he kills another noble does the principle such as “an eye for an eye” obtain. By contrast, in the laws of this parashah the killing of any human being, even one’s own slave, is a serious crime. Moreover, “Eye for eye, tooth for tooth and life for life” does not appear to depend on the social class of the killer or victim.

So it seems to me that conflicting tendencies in this parashah represents a turning point in the history of ancient Israel. It marks a step away from an exclusive concern with our own people and towards compassion for others, even our enemies. But it also marks the beginning of a more sophisticated and nuanced view of right and wrong and of crime and punishment.

From the great empires with their literate elites and sophisticated legal system the Torah borrowed complex legal codes of behavior. But it adapted these codes to a people with far more egalitarian values and living conditions. And I think this helped us on the road toward becoming a culture in which literacy and complex reasoning were not the exclusive preserve of scholars but were widespread.

—Stan Kaplowitz
February 1997

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