Halakhah and Society in the Portion of Mishpatim

Halakhah and Society in the Portion of Mishpatim  Feb 14 2015

            You surely know this old adage; two Jews go into the Rabbi with their case. The first pleads his case. The Rabbi says to the first one” You are Right”. The second pleads his case, the Rabbi says,” You are right”. The Rebbetizin jumps in, “How can both be right?”. To this the Rabbi replies,” You, too, are right.”

            Jokes about rabbis and jokes about lawyers aside, judgment and justice has been an integral part of Judaism form the first day that Abraham asked God,” Hashophet kol Haaretz Lo yaaseh mishpat.” Will not the judge of all the world do justice?”

            Last week, I spoke of the Ten Commandments and explained to you that “Ten Commandments” is actually a term used in, apparently late, in English translations at the end of the Middle Ages. We have “Aseret Hadibrot”, 10 Statements, commonly and more correctly termed, from the Greek, Decalogue. We speak in terms of 613 commandments, “ Taryag Mitzvot”, more a figurative term than a definite listing, but certainly, we know, there are plenty and the great Rabbis spilled countless ink trying to decide on a complete list which none agreed upon.

            The number 613 has its origins in a classic Midrash  in the Talmud and is built upon a very good description of the nature of Jewish laws: 613 is the combination of 248 positive and 365 negative commandments. 248 was the ancient Rabbinic count of bones and organs and 365 the count of days in the solar year. In sum, this Midrash comes to teach us that religious observances encompasses the entire body and is 24/7 year round.

            Of our Mitzvot, again, we noted that in the alignment of the Ten Statements, Aseret Hadobrot, they are aligned with those relating to G-d on the right column, and those relating to humans, on the left. However, the alignment is not so neat. Afterall, # 5 is respect towards parents, and number 4, Remember the Shabbat, is also a benefit to one’s household. If so, Jewish law tilts 70% towards the human need.

            Therefore, it is appropriate that this week’s portion, Mishpatim, which is heavily concerned with social order, follows immediately on the heels of the Giving of the Torah at Sinai and precedes the instructions to build a sanctuary in next week’s portion. Common Rabbinic interpretation is to indicate that the building of the holy and sacred can only be carried out by results of just and honest gain, not by oppression or thievery.

            So let’s look at some of these and see in what way these laws represented something new or earthshaking in its day. The most common example of law is the Code of Hammurabi, who lived as ruler of Babylon around the time of Abraham. It is usually the ancient code most compared to the Bible, both because of its antiquity, and similarity of phrases, but also because, like our commandments, they are described as given by a god, Marduk, to Hammurabi to establish justice.

            But there is justice and then there is justice. What happened in the Torah was a subversion of the prerogatives of the powerful and an elevation of the rights of the weakest and poorest in society.

            Look at our first rule, Ex 20:2-6. It is the rule of the status of slaves, specifically the “ Eved Ivri”, the Hebrew slave, which may have meant an indentured servant, rather than a true slave. In any event, the Eveb Ivri is offered his freedom at the end of the sixth year and if he refuses to go free, he is taken to court, and his ear is pierced, indicating that he has forgone his right of freedom.  Odd kind of punishment until we read what was done by the Babylonians:.

Line 282: If a slave say to his master: "You are not my master," if they convict him his master shall cut off his ear.

            This line is the very last of the rules of Hammurabi. In other words, denying one’s slavery leads to the whole ear being lobbed off. Try to be free and you lose your ear!

            In our portion, refuse to go free, and you also get punished through your ear.

            The Rabbis made a very telling comment on this: The ear that heard God declare at Sinai,” I am the Lord Your Good who brought out of Egypt, out of the house of bondage.” That ear that heard the call for freedom and rejected it, that ear is punished.

            What if the slave runs away and seeks shelter in someone else’s home. Again from the Code:

            Line 16.If anyone receive into his house a runaway male or female slave of the court, or of a freedman, and does not bring it out ( in other words, declare it)  the master of the house shall be put to death.

Line 19 19. If he holds the slaves in his house, and they are caught there, he shall be put to death.”

In American history, one of the most disgusting decisions of the US Supreme Court was in the Dred Scott case, in which it was decided that a slave could not gain his freedom by running away to a state where slavery was illegal. In short, the slave had to be returned to his master. It was the horrible decision that lit the fire of the Civil War. Hammurabi could have sat on the court.

            So what did the Torah state? Skip ahead to Deuteronomy( 23:16):

“You shall not return a slave who has run away from his master…he may live in your midst and you shall do him no harm.”

            Then ,we have the famous “ lex taliones”, eye for an eye.( Ex 21:24).This too has it version in the Code of Hammurabi, but with a clear distinction:

“196. If a man put out the eye of another man, his eye shall be put out. [ An eye for an eye ]

197. If he breaks another man's bone, his bone shall be broken.”

So far, it sounds similar. However, since the codes also deal with goring oxen, as phrase goes, it all depends on whose ox is getting gored, or who it is that hits whom:

They eye of a freed man is worth one mina of gold, the eye of a slave is worth half-price of the slave. If it’s the tooth of an equal, then it’s tooth for tooth, but if it’s the tooth of a freed-man, then 1/3 mina of gold. But watch out if it’s someone noble in rank- then it’s 60 blows with an ox whip.

In other words, the value of eye for eye is very relative, especially if you are a slave or a commoner.

In the Torah, it is weighed differently. If the slave is hit and loses a tooth or an eye, the slave is rewarded with freedom ( Ex 21:26). In all other cases, the Torah makes clear, and the Rabbis carry it out in practice, there is one law, for all, the stranger as well as the native born, and no privileged class.( The language of the Torah, reinforced in Rabbinic teaching, implies financial equivalency, not physical equivalency).

      Finally, I want to touch on one rule in particular, that appears to us in our age as bizarre, the Rule of the female servant.( p. 307 Ex 21:7)

            Do any of you recall the book or the movie based on it, by Pearl Buck, The Good Earth? A young woman was sold off as a servant by a poor man when she was a child to serve in a nobleman's house. What else could one do in time of great poverty? That was true of pre-communist China. Modern communist China introduced the One Child Rule, which led in turn to families giving away, for adoption, hopefully under better circumstances, their daughters, so they could replace the daughter with a son. Certainly, the account of females being abducted and sold off is part of the on-going horror carried out by the fanatics of Boko Haram & ISIS.

            The Torah, too, had to address the reality of its day as well. If a father could be pressed into selling off his daughter to allay extreme poverty for the family, what protection did the child have?

            First, she could never be a slave in the same category as a man could be. She was brought in to the household with the intention of being a wife. Then, if the intended husband finds her to be a bad catch, offer her back, and he may never sell her off to a foreign people because he has abused her. If he brought her for his son, she must be treated with the status accorded a full wife, and he can not take another wife without denying her basic rights to food, clothing, and marital relations.

            Finally, if the owner fails in any respect to meet his obligations to her, he must then let her go, not at the end of seven years, but immediately, at no cost and no penalty to her and no refund from her father.

             In short, what was a system of slavery in other societies was transformed, by the Bible into a system eliminating women from servitude and guaranteeing the rights of a wife.

            However, it is not enough to take pride in the thought that our Torah was, in its day, more enlightened or more advanced. Our sages understood that the written Torah was never and end in and of itself. It needed an” oral Torah”, an ongoing teaching that could reinterpret the original principals in terms that were essential in each and every day. Rules of the conditions of the slave were reinterpreted to and reread to become the springboard for rules on the rights of the day laborer and his work conditions. The rules of the bond-woman were reexamined to become the foundation for the rights of the wife in marriage. “ Dor Dor ve dorshav”=Generation after generation, each with its interpreters.

            What was the one true factor underlying the works of sages in each generation  was the recognition that there could be no true piety and no true religion without addressing the needs of the human being on a day to day, practical basis. It is the natural continuation of the opening statement: Eleh hamishpatim: These are the ordinances that you shall set before them.