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Mishpatim: The Fine Print

I write now from Auckland, the largest city and commercial center of New Zealand. I will be offering a version of this d’var Torah during services this Shabbat at Beth Shalom, Auckland’s Progressive synagogue.

Rabbi Joshua’s nephew Hananiah taught: Just as in the sea there are ripples and wavelets between each major wave, so between each of the Ten Commandments there are Torah’s minutiae, both written and unwritten… (from the Midrash) 

Standing at the foot of the Holy Mountain the entire People of Israel have now witnessed and received the Ten Commandments (or “Ten Utterances”, as I described in last week’s column.) Moses then ascends the mountain and disappears into the mysterious cloud that obscures its summit. Here this week’s portion begins: V’eleh hamishpatim asher tasim lifnayhem – And these are the rules that you shall set before them. (Exodus 21:1) What follows is a detailed law code covering damages, civil law, criminal law, capital offenses – the fine print of the covenant, and the foundation of a living code of law that sustains Jewish discourse and codes of behavior to this day.

We need this fine print. For example, the 6th commandment declares, “Do not murder.” But is unintentional homicide a punishable murder? What about self defense? The 8th commandment tells us “Do not steal.” Is it theft if you find a lost object and do not make an effort to find its owner? Is it theft if you take someone’s idea and do not credit them?

These are questions that a people need to address if they are to pursue a just and fair society. The Children of Israel have emerged from slavery, living and dying in a society ruled by the whim of a tyrant. Under Pharaoh, there was no transcendent pursuit of justice, no concept of equality under the law. Pharaoh was the law, and if he wanted to throw babies into the river, none could question his decree. The Torah is offered as a fundamental corrective to tyranny. Henceforth the concept of justice is ascribed to a transcendent source, and therefore applies to all human beings, not merely the powerful. But “pure” justice only exists as an ideal; applied justice requires constant and careful thought and application. We need living breathing codes of ethics and law, based on transcendent principles. Parshat Mishpatim is the first articulation of that code in the Jewish tradition.

The central principle of Torah and all subsequent Jewish law is that every human being is created in the Divine image, meaning that every human life has incalculable worth and therefore cannot be valued like a piece of property, nor can one life be judged more valuable than another. Repeatedly the Torah reminds us of this revolutionary ideal:

You shall neither side with the mighty to do wrong…nor show deference to a poor man in his dispute. (Ex. 23:2)

You shall not subvert the rights of the needy in their disputes. (Ex. 23:6)

You shall not oppress a stranger, for you know the feelings of the stranger, aving yourselves been strangers in the land of Egypt. (Ex. 23:9)

But if this ideal is so clearly represented, then we must find it strange that, for example, slavery is still enshrined as a legal institution in the Torah. How could these former slaves still justify slavery in their new society? To understand this we must, in my opinion, apply some historical analysis. Slavery was an unquestioned institution in the ancient world, and a fact of economic life. It appears that it didn’t even occur to the framers of the Torah that one could legislate slavery out of existence. But one could legislate for humane treatment of slaves, and for their recognition as fully human, and that is precisely what the Torah does. The Torah insists that slaves be treated with dignity and fairness; their essential humanity does not go forfeit even if their status is low.

Only in the most recent times has it become normative to view slavery itself as a violation of our fundamental humanness, and therefore unjust. While justice may exist as an ideal, our social structures and vested economic interests inevitably interfere with the manifestation of that ideal. A good analogy is the United States’ constitutional history: the truth that all men are created equal is “self-evident”, yet African slaves are given a value of only 3/5ths of a person, and women are not even mentioned. It has taken over 200 years of American legal evolution and struggle to expand that original definition of “men” towards its logical and ideal understanding, and we’re certainly not done yet.

So it is with Torah. A teacher of mine liked to say that Judaism is a 3,000-year-long discussion on ethics. It begins with the radical concept that there is an ideal of justice and fundamental fairness that pertains to all human beings, regardless of station. But that ideal could only be mediated through the social norms of that ancient society. Just as the rabbis did in the Talmud, it is our task to continue refining and expanding our understanding of that ideal. We have made good progress over the centuries, but the challenge to manifest justice continues, as it must. In the famous words of the first-century sage Rabbi Tarfon, “It is not up to you to finish the task, but neither are you free to desist from it.” (Avot 2:17)

One might say that this is why the “fine print” of our Torah portion, and the fine print of all legal and ethical discussion are so important. Judaism treats this discussion as a holy task, a mitzvah, and a path for growing closer to God. Even though we can frequently get bogged down in “legalese”, at its best our 3,000-years-and-counting discussion of applied justice is at the heart of our ancient goal to manifest a just society. And in the process, we also refine our own minds and hearts in service of this ideal.

Shabbat Shalom,

Rabbi Jonathan