2 Mishpatim (Exodus 21, 1 – 24, 18) – the anti-fundamentalist nature of Jewish law

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The Torah reading of Mishpatim contains commandments that in the plain meaning of Scripture are given on Mount Sinai together with the tablets containing the ten statements (and, the Biblical term is ten statements and not commandments). The tablets, and other commandments given on Sinai following the revelation of the tablets, are according to the Biblical account part of the covenant of Moses and Sinai between God and the Israelites – and, the covenant is accepted by the Israelites at the end of the Torah reading of Mishpatim (Exodus 24).

 

The Torah reading of Mishpatim opens with laws of slavery. According to the Bible (Exodus 21, 2-4), a Hebrew (Israelite) slave is to serve only for 6 years, and in the 7th year the Hebrew slave is to be released to freedom. But, the Bible continues (Exodus 21, 5-6) that if a slave wishes to remain a slave, then the ear of the slave is to be bored (in all likelihood, as a sign that there is something wrong with wanting to be a slave) – “then his master shall bring him unto God, and shall bring him to the door, or unto the door-post; and his master shall bore his ear through with an awl, and he shall serve him forever” (Exodus 21, 6). On this verse, the Gaon of Vilna (a great rabbi and legal scholar of the 18th century) makes a remarkable statement about Jewish law – “In the plain meaning of Scripture, the doorpost is also valid (for boring the ear of the slave), but the law uproots Scripture; and, this is true for most of this Torah reading (Mishpatim), and for several sections of the Torah (the 5 Books of Moses), and this is the greatness of our Oral Torah (rabbinic tradition), which is law from Moses, and it turns over as a seal”.

 

The Gaon of Vilna here is making two important points. First, in saying that the law uproots Scripture, he is making clear that in traditional, rabbinic Judaism we live not by the Bible but by the Bible as interpreted and understood according to the Jewish rabbinic tradition. Second, he uses the image of a seal – and, the meaning of the image is that the writing of the seal is a mirror and the reverse of the script that appears after using the seal. This means that not only do we as Jews in the realm of law live by tradition (and, not by Scripture as written), but there are even cases such as this case of the boring of the ear of the Hebrew slave who wishes to remain a slave permanently in which the law (regarding the validity of the doorpost) actually even contradicts the plain meaning of Scripture (turning it upside down).

 

Incidentally, Rava, a great Talmudic teacher, long before the Gaon of Vilna, also makes a remarkable statement (Makkot 22b) – “How stupid are people who stand up before the book of the Torah (the 5 Books of Moses), and they do not stand before a great person (a sage)”. Rava here is saying that often Jews mistakenly, in his view, respect Scripture more than rabbinic sages who are the authoritative interpreters of law in the Jewish tradition – and, we in the Jewish tradition in the realm of law live not by Scripture but by the interpretations of Scripture of rabbinic authorities.

 

Jewish law is based upon the commandments (mitzvot) of the Torah (the 5 Books of Moses), which is a legal constitution of the Jewish people. The Torah reading of Mishpatim in particular is a collection of commandments that are in the main of a legal nature. However, in traditional Judaism (as the Gaon of Vilna pointed out) we as Jews, in the realm of law, live not by what is written in the Bible (termed the Written Torah in the Talmudic tradition) but by the Bible as interpreted and understood by the Jewish rabbinic tradition (termed the Oral Torah in the Talmudic tradition) – the foundation of which is the Talmud.

 

The modern Jewish movements today – orthodox, conservative, reconstructionist and reform as well as secular Judaism – have all grown out of the ancient Jewish, rabbinic tradition based upon the Talmud. In the Talmudic and medieval periods there were Jewish sects outside of the Jewish rabbinic tradition – like the Sadducees in the Talmudic period and the Karaites in the medieval period.

 

The terms Pharisees and Sadducees took on a negative connotation due to Christianity, but both the Pharisees and Sadducees were Jewish sects during the Talmudic period. The Sadducees were a priestly sect, and most of the ancient, hereditary priesthood in Judaism were Sadducees. The Sadducees rejected the Oral Torah (rabbinic tradition) and attempted to live as much as possible by what was written in the Bible (the Written Torah). The Sadducees disappeared with the destruction of the ancient Temple in Jerusalem by the Romans – the Temple being the institutional center of the priestly cult. The Karaites were a medieval sect who like the ancient Sadducees rejected the Oral Torah and attempted to live as much as possible by what was written in the Bible. There were Karaite Jews in large numbers during the medieval period, but they too have largely disappeared.

 

The Pharisees were a sect that was in the main led by scribes and teachers. The Pharisees evidently were willing to interpret Scripture beyond the plain or literal meaning. The Talmudic rabbis were ideological descendants of the Pharisees. Thus, in traditional Judaism we as Jews live not by what is written in the Bible (the Written Torah) but by the Bible as interpreted and understood by the Jewish rabbinic tradition (the Oral Torah) – the foundation of which is the Talmud.

 

I will give an example from the realm of Jewish law to illustrate that we as Jews in traditional rabbinic Judaism live not by what is written in the Bible but by the Bible as interpreted by the Jewish tradition. In the Torah reading Mishpatim it is written – “do not cook a kid in its mother’s milk” (Exodus 23, 19). The verse is understood by the Jewish rabbinic tradition to prohibit the cooking and eating of milk and meat together. But, this is not the plain, simple meaning of the Biblical verse. The Biblical verse speaks only about not cooking a kid in its mother’s milk. For example, it is possible to roast a kid on an open fire, which would not constitute cooking according to the Jewish tradition, and to roast and eat the kid with milk from a cow that is not the mother of the kid, which would not violate what is written in the Biblical verse. Moreover, the Hebrew word (חלב) that is translated as milk may not actually mean milk, as the word can also mean fat. It is even highly likely that the original meaning of the Biblical verse was that it is forbidden to cook a kid in the fat of the mother (which may have been an ancient Canaanite practice), as in the Bible and in the Biblical world it was the meat and fat of animals that were sacrificed as a part of sacrificial worship.

 

The implications here are enormous – we as Jews in traditional rabbinic Judaism, from a legal point of view, live not by what is written in the Bible but by the Bible as interpreted by the Jewish tradition – and, therefore, in principle traditional rabbinic Judaism is not fundamentalist (in the sense of a literal understanding of Biblical texts). The verse “eye for eye, tooth for tooth” (Exodus 21, 24) in the Torah reading Mishpatim is not understood according to the Jewish tradition in its plain or literal meaning as actual bodily punishment, which would reflect a very primitive conception of justice – rather, the verse is understood not according to the plain meaning as requiring monetary compensation. In not being bound in the realm of law by the plain or literal meaning of Biblical texts, the Jewish tradition is thus able to evolve and develop, and, an important image of Torah (Judaism) in the Talmudic tradition is a tree of life – and, a tree is organic constantly growing and changing, while at the same time preserving its identity.

 

I want to add one other important point regarding the Torah reading of Mishpatim. Even though we as Jews in the realm of law do not live by the plain meaning of Scripture, nevertheless the commandments found in the Torah reading of Mishpatim and throughout the Torah (the 5 Books of Moses) in the plain meaning strike a contemporary reader as primitive in large part reflecting an ancient, Israelite agricultural society. There are not only laws regulating slavery, an accepted practice in the ancient Biblical world, but also laws regulating such matters as an ox goring a person, an ox goring another ox, or an ox falling into a pit. Such laws are no longer relevant for at least the overwhelming majority of contemporary readers. From a practical point of view, this is not a problem as in traditional Judaism, as I have indicated, we live not by Scripture but by Scripture as interpreted and understood within the Jewish tradition allowing the Jewish law to evolve and maintain relevance in every generation. From a philosophic point of view, though, how can such laws that appear to a contemporary reader as primitive, or even in certain cases as immoral, be considered to be Divine or sacred?

 

When we view the Bible in its historical context, and we compare the laws of the Bible to other legal documents from the ancient near east, such as the ancient Babylonian law code of Hammurabi, then Biblical laws often appear not primitive, and not immoral, but enlightened. I will cite two cases. First, according to the ancient code of Hammurabi, there was a strict fugitive slave law including rewards for returning a runaway slave. In the Bible, there is an explicit law (Deuteronomy 23, 16) – “You shall not deliver unto his master a slave that is escaped from his master unto you”. Second, regarding the Biblical law “eye for eye, tooth for tooth”, which appears to a contemporary reader as, if not immoral, at least primitive, was in its historical context a revolutionary legal principle in demanding a fair legal punishment in place of oftentimes widespread revenge in the ancient near eastern world. Moreover, although the principle is found in the code of Hammurabi, it was understood in a very literal way so that, for example, if a builder of a home causes the death of the owner’s son or daughter, then not the builder would be put to death but the son or daughter of the builder would be put to death. In the Bible, it is explicitly written (Deuteronomy 24, 16) – “The fathers shall not be put to death for the children, neither shall the children be put to death for the fathers; every person shall be put to death for his own sin”.

 

Thus, the Torah (the 5 Books of Moses), as a legal constitution of the Jewish people, and the Hebrew Bible are sacred in the Jewish tradition not because they are the last word (infallible) but because they are the first word of traditional Judaism (subject to interpretation). From a practical point of view, we as traditional Jews live not according to the plain meaning of the Torah and the Bible as the Divinely revealed word of God, but according to the interpretations and explanations of the rabbinic tradition (often far removed from the plain meaning of Biblical texts) – from a spiritual point of view, the Torah (the 5 Books of Moses) and the Bible as the first word of traditional Judaism are the historical, moral, spiritual and inspirational foundation of the Jewish tradition revealing the moral and spiritual direction and orientation of traditional Judaism.

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Jeffrey Radon

Author of orthopraxjudaism.com

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