Mishpatim

Looking at this week’s Torah reading, one would think that the Jewish Nation was made up primarily of murderers, thieves, violent criminals and other social miscreants. Why else would the Torah need to spend so much time enumerating all of the different types of crimes and their punishments? Not only the Written Torah, but also the Oral Law contains detailed discussions of criminal offences and legalities. One complete Order of the Mishna, one sixth of the Oral Law, is entitled Nezikin (damages) and deals with the power of the Beis Din (the courts) to punish infringements of the laws.

Yet it is common knowledge that, far from being the violent criminals portrayed through this legislation, the Jews have consistently been seen to be moral, just and honest. The Western World owes Judaism a huge debt for introducing many concepts that now form the basis of our society.

The Talmud (Bava Kama 30a) states that someone who wants to become a Chasid (literally, G-d Fearing), should devote himself to studying the laws of Nezikin. Not only do these criminal laws not make us criminals, but they actually make us more moral. The constant involvement with, and awareness of, the rights of others, makes a person think about his or her own actions, and take exceeding care not to infringe upon those rights.

This can be seen through the famous, but often misunderstood, law of “Ayin Tachas Ayin”, mistranslated as “An eye for an eye”. The word Tachas does not mean “for”, but rather “in place of”. Therefore, the Torah is not telling us that the punishment for injuring another’s sight is to lose one’s own sight; that would certainly not be a replacement for the injured party. In reality, each individual’s eyesight has a different value. A microbiologist who spends all day looking through a microscope would give his sight a certain value, while a musician would give a completely different value to his sight. Taking away a damager’s eyesight, therefore, would not be “in place of” the injury he caused. The Torah must be referring instead, to monetary compensation for damages inflicted to others.

If the Torah is only referring to financial payments, why did it use the language of paying with the damagers physical body? It must be in order to teach us the severity of the crime, and the significance of putting ourselves in the place of others, thus doing our utmost to avoid harming them.

The Torah does not present these laws as compensation for the injured party. We do not have a system of suing people for any perceived wrong. Rather G-d is instructing anyone who is involved in activities which could injure others, to be aware of the dangers involved in his actions. “Ve’ahavta l’re’echa kamocha”, “Love your neighbour just as much as yourself”; as much as one looks out for one’s own rights, so too a person must be concerned to guard the rights of others.

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Our Torah reading opens with the words “And these are the judgements that you shall place before them”. Rashi comments: Wherever it says ‘These’ in the Torah it rejects that which has been stated previously. Wherever it says ‘And these’ it adds to that which has been stated previously. Just as those which have been stated previously, [the Ten Commandments] are from Sinai, so too, these commandments are from Sinai.

Why does Rashi need to tell us that the laws contained in this portion were also given at Sinai? Surely the entirety of the Torah was given by G-d to Moshe at Sinai, why does Rashi single out this section?

‘Mishpatim’, the name of the portion, also describes the laws contained in it. There is almost no narrative, only a seemingly haphazard collection of laws. However most of those laws are logical, and clearly understandable as necessary precepts for the functioning of a just society. All the Mitzvoth in the Torah can be divided into two main groups, the Chukim (statutes) and the Mishpatim (laws). Chukim are rules for which we see no apparent logical reason, for example Shatnez, the prohibition on mixing wool and linen in garments. Mishpatim are laws that would probably have been formulated, even without the Torah, for society to function smoothly.

Therefore Rashi comes to tell us that the laws in this section are not merely the result of societal norms, but are also Divine in origin. There is no qualitative difference between the laws of Kashrut or Shabbat, and those of theft or damages.

Why was it necessary for G-d to give us laws that we would have been able to formulate for ourselves even without the Torah? As the Talmud (Eruvin 100b) states: Rabbi Yochanan said, ‘If the Torah had not been given we would have learnt modesty from a cat, [the prohibition of] theft from an ant, sexual prohibitions from a dove and laws of marital relations from a chicken’. Why did G-d deem it necessary to write these laws which we could have discovered for ourselves?

The Mishna (Makkos 3; 16) says: Rabbi Chanania ben Akashya says ‘G-d wanted to give merit to Israel, therefore He increased for them Torah and Mitzvoth, as it says (Yishayah 42; 21) “G-d desired for the sake of His righteousness to magnify the Torah and make it glorious”. Rambam in his commentary to the Mishna explains: It is amongst the foundations of faith that when a person observes one of the 613 commandments properly, and does not have any intention other than to fulfil it out of love for the Creator… behold they will merit through it eternal life in the world to come. About this Rabbi Chanania said that because there are so many Mitzvoth it is impossible that a person will not perform at least one of them in their lifetime with the proper intention, and through that performance will gain eternal life.

By giving us a combination of logical laws and commandments which are beyond our comprehension, G-d ensured that we would be able to fulfil at least some of them properly, and thus earn our eternal reward.

However it is important to bear in mind that the reason that some laws seem to make more sense to us than others is because G-d created us with a finite degree of logic. The definition of some laws as Mishpatim and some as Chukim is almost arbitrary. All of the Torah is G-d’s plan for the universe, and the observance of the laws facilitates the proper functioning of the world.

However, had it all been logical it would have been difficult to keep the laws purely because G-d so instructed us. Had none of it been comprehensible to us we would have not understood that there is a purpose in the universe. By creating us with imperfect understanding, G-d has given us the opportunity to keep part of the Torah because we understand it, and part of it out of pure love for G-d with no ulterior motive.

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After a lengthy list of laws and statutes, the Torah portion returns to the narrative of the Jews standing at the foot of Mount Sinai. G-d tells Moshe, “Behold I will send my angel to go before you, to guard you on the way, and to bring you to the place which I have prepared” (Exodus 23; 20). Rashi explains that G-d here warns Moshe and the people that they will come to sin with the Golden Calf, and instead of G-d leading them directly, He will direct the nation through the intermediary of an angel. This is what we find in the Torah after the sin of the Calf, G-d says to Moshe, “Now go and lead the people, to that which I spoke to you. Behold my angel will go before you...” (ibid. 32; 34).

We have a principle that Heavenly punishment always fits the crime, and this is indeed the case here. At the time of the Golden Calf the nation were afraid that Moshe had been killed, and would not return. Therefore they wanted another leader, to act as an intermediary between them and G-d. They said to Aharon, “Make for us a god (or judge) that will go before us, for this man Moshe, who brought us out from the land of Egypt, we know not what has become of him.” (ibid. 1). They did not consider Moshe divine, rather a leader who was an intermediary between them and G-d. Similarly the concept behind the Calf was for to have an intermediary, not a god. Only after it was built did some of the people begin to worship the Calf itself, and proclaim it as a god.

However, even asking for an intermediary deserved punishment. When the people heard G-d at Mount Sinai they were afraid, and asked Moshe, “’You speak to us and we shall hear; let not G-d speak to us lest we die’. Moshe said to the people, ‘Do not fear, for in order to elevate you has G-d come...’” (ibid. 20; 16-17). Moshe rebuked the people for not wanting this direct contact with G-d. In fact we find that the desire for intermediaries was the origin of idolatry in the world. The Rambam writes (Mishneh Torah, Laws of Idol Worship, 1; 1) that in the generation of Enosh the people made a grievous error. They reasoned that it was not appropriate to pray directly to G-d, but they should instead pray to Him via the celestial luminaries that He had placed before him. Over the generations this led to forgetting that these were only intermediaries, and the people began worshipping them as gods.

So, from the outset, the building of the Golden Calf was bound to end in disaster. Though the Jews were only seeking an intermediary, that was itself a sin that would inevitably lead to idolatry. Therefore as punishment G-d told them that He would not be in their midst, but would only relate to them through an angel.

The Ramban points out that this punishment of ‘I will send an angel before you’ never took place. Moshe pleaded for mercy, “If Your presence will not go with us, do not take us out from here...” (ibid. 33; 15), and G-d consented when He said, “I will also do this thing that you have spoken” (ibid. 17). Although this decree did not take place in Moshe’s lifetime, it was fulfilled immediately after his death. Just before Yehoshua led the nation to do battle with Jericho the Bible states, “And it came to pass, when Yehoshua was by Jericho, that he lifted up his eyes and looked, and behold there stood a man over him… and he said, ‘I am captain of the host of the Eternal, I am now come’.” (Joshua 5; 13-14). The Midrash Tanchuma (Mishpatim 18) explains: “The angel said to Yehoshua, ‘I am he who came in the days of Moshe your master, and he pushed me away and did not want me to go with them.’”. After Moshe’s death, G-d’s relationship with the nation changed, from being direct, to being only through an intermediary.

However, it seems strange that the Israelites were punished for wanting an intermediary, when at the end of this week’s Torah portion we find that they are not able to cope with direct revelation. “Go up to G-d, you [Moshe], Aharon, Nadav and Avihu, and seventy of the elders of Israel, and you shall prostrate yourselves from a distance… Moshe, Aharon, Nadav and Avihu, and seventy of the elders ascended. They saw the G-d of Israel… G-d did not stretch out His hand [to punish] the great men of Israel - they gazed at G-d, yet they ate and drank.” (Exodus 24; 1-11). Rashi explains that G-d did not punish them on the spot, though they were worthy of punishment for gazing at Him. However, G-d delayed their punishment so as not to detract from the sanctity of Mount Sinai. The reason that they were punished was for staring at G-d while they were eating and drinking. They were unable to attain the proper level of spirituality but instead were sunk in their material actions. We see from here that even the leaders of the Israelites, with the exception of Moshe and Aharon, were unable to cope with such a direct relationship with G-d. Why then were they punished for wanting an intermediary?

The answer must be that their need for an intermediary was real, and thus their attempt to find one valid. However, their mistake was in settling for this lesser relationship with G-d instead of trying to elevate themselves spiritually to a level where they would be able to sustain a direct relationship. As long as they were in the desert, under the influence of Moshe, they were able to have G-d’s presence in their midst. But as soon as Moshe was no longer with them, instead of remaining on this spiritual level the people settled for intermediaries to lead them. The angel coming was not so much a punishment as it was the inevitable result of the people’s actions and spiritual level.