Parashat Mishpatim

“These are the laws you shall place before them” (Exodus 21:1)

Our current Torah portion deals mainly with the laws for the maintenance of public life and society; the “Sefer HaChinuch” lists it as having 53 of the 613 commandments. As is known, without laws and the fear of authority (Heavenly authority or that of flesh and blood), people would swallow their neighbors alive.

Our nation, the Chosen People, was given the rules for the proper organization of society by G-d. Therefore a secular court of law whose law-makers are flesh and blood is not like a Rabbinical court of law, whose law-giver is G-d. Even when the Rabbinical court judges one who digs a hole in the public domain as liable, they are fulfilling the literal word of G-d. Therefore the Rabbinical courts in our Torah portion are called “Elohim” (a word which is usually one of G-d’s names), as it is said (Exodus 22:8), “The matter between them will come to the court [ad haElohim].”

This introduction was written to show the worldview of the G-d-fearing people. But when you go more deeply into the matter you will find that there is no difference between one court of law and another. In both of them the law-giver and the judge are flesh and blood. See what we have written on earlier Torah portions about this issue, for we have come now to add to and sharpen those words. While the laws of a free country are genuinely proclaimed to be the work of man, in halachic Judaism, even though the laws were created by the sages, they are proclaimed to be given by G-d, and only from Him do they draw the force of legal obligation. We shall see that it is not so.

The Gemara states in Tractate Sotah 16a: “Rabbi Yochanan said, in the name of Rabbi Yishmael, ‘In three places did the halacha uproot the Bible; the Torah said with dust [you should cover the blood] and halacha says with anything, the Torah said with a razor [you shall not cut a nazirite’s hair] and halacha says with anything, the Torah said as a book [a bill of divorcement shall be written], halacha says in any way.” But we know well it is not only in these three things. Come see which goading words the Vilna Gaon wrote in his book, “Aderet Eliyahu” on the portion of Mishpatim: “‘To the door post’ (Exodus 21:6) – according to the plain text the door post is valid [for a slave’s ear stabbing ritual], but halacha had superceded the Bible, and it is so for most of this portion and in a few other portions of the Torah. It is one of the greatnesses of the Oral Torah that it is tradition given to Moshe at Sinai, [but still] is like sealing-wax which can be shaped. For it is said (Makkot 22b), ‘How foolish are those who rise for a Torah scroll [to pay respect to it], and not rise for a Torah scholar…’ And also in the verse, ‘And its owner, too, will be killed’ (Exodus 21:29), halacha supercedes the Torah.”

So we learn explicitly from the Vilna Gaon wonderful things, that most of most of our portion gets taken out of its plain meaning, and halacha is determined by sages and not by the Bible. And the Vilna Gaon added that the Torah is like sealing-wax which is molded and polished by man! Additionally, the Gaon brought a phrase from Tractate Makkot, which states that those who rise for a Torah scroll to pay respect to it but do not rise for a scholar are fools, for the scholar has the power to supercede the laws that are in the Torah scroll!

One who looks in Gemara, Tractate Baba Kama 83b, will also realize that Chazal well understood that the plain text of the Torah means “an eye for an eye” literally, as the Tosfot writes there on page 84a, first reference, “It is impossible to take ‘an eye for an eye’ by analogy out of its plain meaning, for it means an eye literally.” Moreover, we have it from the Gemara mentioned above, Makkot 22b, “Rabba said, ‘How foolish are most of those people, who rise for a Torah scroll but do not rise for a scholar. For while in the Torah scroll it is explicitly written “he will give him forty [lashes]”, the sages, on their own, lessened it by one’.”

Similarly, the Chief Rabbi of Israel, Rabbi Herzog, wrote in his Responsa “Heichal Yitzchak,” Orach Chaim, section 9: “As for the number forty [lashes] it is not a made up interpretation of the Torah words but an allegory. The main thing is that the sages uprooted it here through an abstention.” [The “shev ve-al taaseh” state mentioned here is when a Torah commandment is violated not through action but through abstention from action.]

To illustrate, come see how the sages do uphold the words of the Vilna Gaon, that our Torah is shaped by man like sealing-wax. About the verse “When a man gives money or goods to another for safekeeping…whereof one party alleges, ‘This is it’,” (Exodus 22:6), the gemara in Baba Kama 107a states: “A mixture of sections is written here,” that is, Chazal decided that the words “This is it” should have been part of the section on the loaner, “If you lend money to My people” (Exodus 22:24). So you see that the Biblical text is like clay in the hands of the sculptor, they pinch away here and stick on there and change words in the Torah and its verses according to their will.

But it was not only the words of the Torah, the words of the living G-d, which Chazal distanced from their plain meaning. The Amoraim distanced the Tanaim’s words from their plain meaning. The Gemara, in Tractate Baba Kama 84a, brings a saying of one of the Mishna sages: “Rabbi Eliezer says, ‘an eye for an eye – literally’.” But the Talmud immediately turns his words on their head: “Rav Ashi said, ‘That is, we do not estimate by the one who damaged but by the one who was damaged,” and thereby Rav Ashi turned the Tana, Rabbi Eliezer, into a person that doesn’t know what he’s saying. About the ridiculous method of destroying the meaning of words to facilitate making pretexts, we have already quoted the Ibn Ezra (on Daniel 1:1): “How is it possible in a human language that a man should speak one word and mean another? One who supposes so would be considered a madman.”

From all our words above you learn that we do not live according to the Torah or according to the Mishna, but according to the sages that live in each generation.

And since there are those in the G-d fearing community who innocently suppose that today’s enlightened world draws its laws and values only from the Torah of Moshe, we went to the university library to search out the teachings of ancient civilizations, and how they impact our nowadays life. Hundreds of books have been written about the ancient Near East nations and their law systems, so that one who wishes to know can read them and become wise (it is worthwhile beginning with some encyclopedias and guides before going on to the books on any subject area).

The most famous set of laws is the code of Hammurabi, a Babylonian king who ruled circa 1800 B.C.E., a long time before the Exodus from Egypt. Other sets of laws we possess are those of King Shulgi of the Ur kingdom, King Lipit-Ishtar of the city-state Isin, and King Dadusha of the city-state Eshnunna. You will find many articles on all of them; read them and you will find that though they predated the Torah of Moshe by hundreds of years, their laws do not greatly differ from the Torah laws. The resemblance between the codes is great–they look as though they were written with the same idea in mind. And as to the correspondence with today’s values – sometimes it seems that the Torah is more progressive and sometimes the laws of Babylon, Assyria and the Hittites seem more progressive.

The greatest code of all is Hammurabi’s Code. Before we make a comparison, you should know that Hammurabi’s Code is carved on a great stone pillar and this pillar is now in the Louvre Museum in Paris. Even the language of this code – Akkadic – is  close to our language. King Hammurabi called his code  “Dinnat Meysharim” which is translated as “Laws of the Just” – compare to a famous Judaic book’s name “Mesillat Yesharim” (“The Path of the Just”).

Researchers have divided his code into 282 laws. We will quote some which precisely parallel our Torah portion, the portion of Mishpatim — laws (the quotes below will be made according to the English translation in “Ancient Near Eastern Texts Relating to the Old Testament,” ed. by J. Pritchard; anyone who wants to get acquainted with Hammurabi’s Code as a whole may look at it in that book).

Law 196: “If a seignior has destroyed the eye of a member of the aristocracy, they shall destroy his eye.”

Law 200: “If a seignior has knocked out a tooth of a seignior of his own rank, they shall knock out his tooth.”

Law 209: “If a seignior struck a(nother) seignior’s daughter and has caused her to have a miscarriage, he shall pay ten shekels of silver for her fetus.”

Law 142: “If a woman so hated her husband that she has declared, ‘You may not have me,’ her record shall be investigated at her city council.” (We must note that according to Hammurabi’s Code, written long before the laws of Moshe, a woman could divorce her husband even against his will, while in our Torah, a woman can only get a divorce if her husband is willing.)

In many things the resemblance to our Torah portion is astonishing.

First, the structure of the two sets of instruction is the same. Both contain the praises of deities. Afterwards come the laws, and finally threats of Divine retribution if these laws are not obeyed.

Second, Hammurabi also gave Divine authority to his laws: “When Marduk (the Babylonian deity) sent me to rule over my people, to give the protection of right to the land, I set up the law in the land’s language, and brought a blessing on my people.”

Third, exactly as did Moshe, Hammurabi forbade changing or diminishing from his laws.

Fourth, and this is most important, most of Hammurabi’s laws are identical to the laws of the Torah portion Mishpatim in their legalistic format. The law begins with a “precondition” (the ancient Greeks called this the “protasis”), continues with “additional condition or conditions” and ends with a “legal conclusion” (called the “apodosis” by the Greeks). Thus:

The Torah (Exodus 21:18):

Precondition:	When men quarrel
Additional condition or conditions:	and one strikes the other with stone or fist, and he does not die but has to take to his bed, if he then gets up and walks outdoors upon his staff
Legal conclusion:	the assailant shall go unpunished, except that he must pay for his idleness and his cure.

Hammurabi’s Code (law 206):

Precondition:	If seignior has struck another seignior in a brawl
Additional condition or conditions:	and has inflicted an injury on him,
Legal conclusion:	that seignior shall swear, ‘I did not strike him deliberately,’ he shall also pay for the physician.

About this did Ecclesiastes say “there is nothing new under the sun.” What Hammurabi wrote is what Moshe wrote, and as Hammurabi attributed to his laws a Divine authority, so, too, did Moshe consider his words as those of the Divine. The form of the rules and their content are similar and very alike, with the only difference that Hammurabi’s Code predated the Torah by some 600 years, and he who is wise  will understand.

Words of True Knowledge.