Mishpatim: The Living Torah

Parshat Mishpatim introduces the practical statutes necessary for Israel to establish a model society.

What exactly did Israel receive at Sinai?

In what way do the people of Israel and the Torah interact through a symbiotic relationship?

Why are the statutes as expressed in the Written Torah almost always so different from Jewish law in practice?

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Transcript:

Parshat Mishpatim elaborates on the Brit Sinai – the new covenant between Israel and the Creator established to supplement the original covenant forged with the patriarchs. Parshat Mishpatim – which literally translates into English as “rules” – begins transmitting the details for how Israel is meant to organize and run our society. Parshat Yitro gives us the what. HaShem charges us with becoming a “mamlekhet kohanim v’goy kadosh” – a “kingdom of priests and a holy nation.”

Parshat Mishpatim gives us the how – the practical laws that should govern our society.

This idea can be challenging for Jews brought up within the ideological frameworks of other civilizations. The Western world, for example, generally views religious observance as something limited to an individual’s private sphere of belief and ritual practice. This approach constructs a false division between personal spirituality and the way a society functions.

Hebrew civilization actually has no such concept as “religion” because Israel rejects the notion of anything existing outside of HaShem. Israel’s earthly mission necessitates elevating every aspect of Creation by infusing it with Divine meaning and raising it to its highest potential.

The Torah recognizes no distinction between our personal relationships to the Creator and how we treat our fellow human beings because all areas of life are intertwined and kedusha derives from ethical business dealings no less than from piety in matters of Torah study and tefillah.

But there’s a lot of confusion over what we were actually given at the Brit Sinai. It’s important not to assume that Israel received the entire Ḥumash at that point. In the Talmud in Gittin 60a, we see Rabbi Yoḥanan state that we continuously received the Ḥumash scroll by scroll as it was taught to us over 40 years. And we see Rabbi Shimon ben Lakish state that we received it all at once before entering the Land of Israel. But there’s no opinion that we received it all at Sinai.

What’s also important to appreciate is that our Torah is alive. It is dynamic and interacts with the children of Israel symbiotically. Part of this relationship is that the practical implementation of the Torah’s laws is for the most part the prerogative of the people, represented by our Sages, who each received the tradition from a master who received it from a master who received it from a master going all the way back to Moshe.

The Torah shares a soul with the land and people of Israel. That soul is the Divine Ideal from before Creation lowered into our world for the sake of elevating reality beyond its ostensible limitations. The Torah is also much more than merely what we refer to as the Ḥumash but also the prophetic Books of Neviim and Ktuvin that Israel added through our national lived experience in our land. And then there’s also the distinction between the Written Torah, the Oral Torah and the Hidden Torah – all of which were Divinely given to the people of Israel through Moshe.

There’s a very problematic assumption in more westernized circles that claims the Oral Torah to have evolved from the Written Torah. That the Oral Torah is a series of discussions or interpretations of the Written Torah – as if our Sages sat around trying to understand what a verse meant and ultimately came to whatever conclusions they came to that became the practical halakha. This is incorrect.

The truth is that there is a living tradition that the Sages understand before they examine and expound on a verse in the Written Torah and in most case their examination of a verse and their connecting of that verse to a specific halakha is for the purpose of making an educational point.

The Written Torah and the Oral Torah each stand independently but share the same Divine Source. They are both expressions of the Creator communicating with His creations.

The Written Torah should actually be seen as a portion of the Oral Torah that was concretized in written form at a very specific moment in history. It tells us who we are. Israel’s identity and historic mission. It presents us with moral ideals and values. And it teaches us how the Creator interacts with history.

There’s also an opinion that the Written Law is the part of the Torah that’s meant to be accessible to humanity at large. But, as we discussed in our episode on Parshat Yitro, that would require Israel’s participation in transforming it into the TaNaKh through a collective lived experience.

The actual practical details of the laws governing Hebrew society rarely ever come from the Written Torah. The practical legal application of our Torah is mainly found in the Oral Law, which constitutes the symbiotic interplay of the children of Israel with the Divine Will.

We see many examples of this in Parshat Mishpatim. When discussing the penalties for a person who causes bodily harm to another, Sh’mot 21, verses 24 and 25 famously state “an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot, a burn for a burn, a wound for a wound, a bruise for a bruise.”

Although this is clearly meant to communicate a value and teach us an essential principle for understanding the ways of the universe and Divine justice, these verses were never accepted as having any literal legal application in a human court. The consequences imposed by our judges were generally not punitive but focused on rehabilitation and righting a wrong.

Some academics might try to claim that Hebrew courts took out people’s eyes or teeth until the Talmud softened the law into monetary compensation. But the truth is that there’s not one opinion expressed in the Talmud claiming that these verses should be or ever were taken literally. The Sages didn’t seek to soften our Torah. The children of Israel knew from the time of the Brit Sinai that these verses refer to monetary compensation. We see this expressed in Baba Kamma pages 83b and 84a.

But because the academic world often identifies the beginning of things as being when they were first recorded, it lacks the tools to properly understand our Torah. It was forbidden for Israel to write down the Oral Torah and we only ultimately did so at a time when we were at risk of losing it because our entire national framework was being destroyed by the Roman Empire. But to assume that the laws and practices that appear in the Oral Torah only began when it was written down completely misunderstands how our ancient civilization functioned.

When confronting the question as to why the Written Torah would use language like an “eye for an eye” when that wasn’t meant literally, the Rambam answers that from a Divine perspective, the perpetrator deserves to lose his eye and should therefore seek his victim’s forgiveness in addition to paying the monetary restitution that the Hebrew court imposes on him.

The purpose of the laws as they appear in the Written Torah is to convey the essence of true justice. “An eye for an eye” isn’t the practical application of human justice. But it also shouldn’t be dismissed conceptually because it is Divine justice. And that’s something important for the court, the victim and the perpetrator to understand.

Sh’mot 23, verse 19 states that “you shall not cook a kid in the milk of its mother.”

The Sages didn’t come along, examine this verse and then decide to outlaw cheeseburgers. It had already been known through the oral tradition that we had been carrying that we don’t eat meat and dairy together. But that law obviously shares a common theme with this verse in the Written Torah – which is actually communicating a value we’re meant to internalize.

From a moral perspective, we should understand this verse as an admonition regarding callousness in not only the slaughter and eating of living creatures but also even depriving them of what is rightfully theirs by appropriating their milk for our own use.

Although the Torah permits the eating of meat, it also mandates that we not be indifferent to the killing of living creatures. The Torah also permits the taking of milk from animals, but if we do so with no regard for the welfare or feelings of the creature, we’re actually committing a form of theft. It’s important for us to keep in mind that an animal’s milk is actually theirs and not ours.

The very first laws presented in Parshat Mishpatim are those of “avdut” – generally translated into English as “slavery.”

Sh’mot 21, verse 2 specifically states that these laws refer to an eved Ivri – a Hebrew slave. Such laws could on the surface seem irrelevant – or even barbaric – to many people today and there are different approaches to understanding these verses.

One approach is to simply say that the Torah was revealed into our world at a time when slavery was a widespread institution and humanity wasn’t yet ready to progress past it. It should be noted that Israel left Egypt at a time when most of the region adhered to the societal norms found in the Hammurabi Code. The Torah is a prophetic expression of Divine speech from beyond this world but it was still initially addressing human beings at a very specific historic moment.

Therefore the Torah does something progressive for its era by setting acceptable boundaries to protect the basic rights of slaves. One could make the argument that humanity, including Israel, still had to advance to the point of abolishing slavery and until then required regulations to soften and improve life for slaves under the prevailing conditions that existed.

The Torah amends and corrects that system, while not requiring an immediate transition to a society without slaves. As humanity in general and Israel in particular would later experience cultural and spiritual advancements, there would come a time when our Sages would declare some of these laws to no longer have practical application.

But this doesn’t mean that these laws ever lose their meaning. Studying them in order to understand the values and prophetic ideas they embody will always be important. But they can lose their practical application when humanity advances to the point of solving the problems the verses themselves were meant to address.

So even according to the view that once a natural historical process enables humanity to progress past institutions like slavery and the original laws in these verses lose their practical relevance, they should nevertheless be related to as prophecy and continue to remain relevant and important for us to understand of the Torah’s values.

But another way to understand these verses is with the perspective that the slavery discussed in our Torah isn’t actually as backwards or immoral as some might assume.

It’s generally important that we be conscious of our own tendencies to place much of what we encounter in the Torah into the ideological paradigm of the civilization we’re most familiar with. Many people tend to do this automatically without even being conscious of how ideology functions.

So Jews in the United States, for example, might automatically associate the avdut in these verses with the chattel slavery that existed in the United States until a little over a century and a half ago. But other than the fact that avdut loosely translates into English as slavery, the two institutions barely share any similarities. The slavery that existed in the United States actually shares more in common with the industrial slavery of ancient Egypt, Greece and Rome.

It’s also important to note that the avdut discussed in the opening verses of Sh’mot 21 refers to a Hebrew convicted of theft. That was generally how a Hebrew would become an eved. The consequences of the crime weren’t punitive but focused on rehabilitation and righting the wrong. The victim of the theft would receive restitution through the price the family buying the thief as an eved would pay the court.

The eved would meanwhile live with and essentially become a member of the family, with very specific obligations and protections. A family actually paid to take a convicted criminal in for a few years and to rehabilitate him in their home as part of the family.

So we should actually take pride in the fact that the closest thing our people had to slavery 3,000 years ago was not only infinitely more humane than the American chattel slavery of only 200 years ago, but also more humane than even the US prison system today – which is actually itself a form of slavery.

It’s probably safe to assume that if anyone convicted of theft today would be given the choice between six years in prison or six years as an eved, they’d likely very quickly choose avdut.

In any case, our Sages teach in B’reishit Rabbah that the Kadosh Barukh Hu looked into the Torah and created the world. But that’s not the Torah that we have. The Torah HaShem looked at is essentially the blueprint of the universe. The Torah that we have is a manifestation of that Torah that was lowered into our world. But by engaging with the different manifestations of the Written Torah, the Oral Torah and the Hidden Torah that exist here, we access and attach ourselves to the greater Torah – to the blueprint of the universe.