1 Mishpatim (Exodus 21, 1 – 24, 18) – law and morality

The opening verse of the Torah reading Mishpatim is “And these are the ordinances which you shall set before them” – and, Rashi, the great Biblical commentator of the Jewish tradition, who lived in the 11th century, interprets the word “And” as indicating that just as the mitzvot (commandments) that were given prior to this in the ten statements (and, the Biblical term is ten statements and not commandments) were given at Sinai, so too the mitzvot (commandments) given in the Torah reading of Mishpatim were given at Sinai. However, there is a fundamental difference between the commandments of the ten statements and those of the Torah reading of Mishpatim. This fundamental difference is the difference between morality (the commandments of the ten statements) and law (the commandments of the Torah reading of Mishpatim).


Law in general, and the Jewish law (Halacha) in particular, is an external system of authority. Jewish law is an elaborate legal system based upon the mitzvot (commandments) of the Torah (the 5 Books of Moses), which is a legal constitution of the Jewish people. In the case of Jewish law, it is the Jewish legal system that determines for the Jewish people what is permissible, forbidden and obligatory in an authoritative way and demands obedience to its authority. Also, we as Jews do not determine law for ourselves, and it is the authority of rabbis in each generation to determine law. Similarly, in modern democratic nation-states there is a legal system governing what is permissible, forbidden and obligatory in an authoritative way – there are authoritative lawmakers who establish law, and citizens do not establish law for themselves.


Morality is not a matter of external authority. We determine our subjective moral values and subjective conceptions of right and wrong, good and bad for ourselves. Moreover, an external legal system determines law in a particular society and time period – whereas, morality is concerned with universal duties and obligations.


The term mitzvah (commandment), which means obligatory, can have in the Jewish tradition both a legal and moral meaning. There are mitzvot (commandments) that are a part of Jewish law – and, there are mitzvot (commandments) that are moral obligations. For example, the Biblical commandment “you shall do that which is righteous and good in the eyes of the Lord” (Deuteronomy 6, 18), which expresses, in my view, the essence of religion in the Biblical conception, is a moral demand of going beyond the letter of the law (as Rashi, the great commentator, understands).


There is a midrash (rabbinic commentary) that exemplifies this distinction between law and morality. The midrash tells a story of Rabbi Shimon ben Shetach (Deuteronomy Rabbah 3, 3):


A story of Rabbi Shimon ben Shetach who bought a donkey from a gentile. His students went and found a valuable stone hanging on its neck. They said to him, “It is the blessing of the Lord that enriches” (Proverbs 10, 22). Rabbi Shimon ben Shetach said to them, I bought a donkey – a valuable stone I did not buy. He went and returned it to the gentile.


The background to this midrash is that the Halacha in the early Talmudic period did not require Rabbi Shimon ben Shetach to return the valuable jewel to a non-Jew (the Halacha later changed). The law required him to return a lost object to its owner only in the event that the owner was a fellow Jew. Rabbi Shimon ben Shetach was not prohibited from returning a lost object to a non-Jew, but he was under no legal obligation to do so. His decision to return the jewel was on the basis of his moral conscience. Thus, implicit in this midrash is the distinction between legality and morality – an action which is legal or permissible is not necessarily moral. The Torah demands morality (“You shall do that which is righteous and good in the eyes of the Lord”), and not just observance of the strict letter of the law. There is a Talmudic source (Baba Metzia 30b) in which Rabbi Yochanon shockingly says that Jerusalem was destroyed because legal judgments were rendered according to the laws of the Torah! In explanation of his shocking statement, the Talmudic source says that legal judgments were based upon the strict letter of the law, and did not go beyond the strict letter of the law.


The ten statements include commandments that are formulated in the form of moral absolutes, universal and rational in nature, requiring no prophetic mediation from Moses, such as “you shall not murder” or “you shall not steal”. Indeed, the commandments of the ten statements are written in second person singular because they are addressed directly to the people Israel without prophetic mediation – and, they are formulated in the form of absolute and universal moral commands not dependent upon any particular case or conditions.


Even though the ten statements in the plain meaning of Scripture are addressed to the Israelites, all human beings can relate to the ten statements – and, indeed, this is what happened from a historical point of view, as the ten statements became a foundation of the western culture. Christianity, in which the Hebrew Bible is a part of Christian scripture, rejected the Jewish law as binding, but accepted the ten statements – including the observance of the Sabbath, which is the one commandment of the ten statements that is ritual in nature although what is emphasized in the ten statements is the social aspect of rest for all of society (even slaves and animals). The Sabbath in Christianity is not observed according to Jewish law, and the Sabbath was changed in Christianity from the 7th day to the 1st day (Sunday), but there is a notion of a Sabbath day of rest. The absolute commandments of the ten statements are in the form of absolute moral imperatives that are universal in nature transcending any particular conditions, culture or time period. The ten statements are eternally relevant to any human being, no matter what culture or time period he or she may live in, even though they happen to be directed to the people Israel.


The commandments that follow after the revelation of the ten statements in the Torah reading of Mishpatim (Exodus 21-23) are in the main (though not entirely) in third person singular, transmitted through the mediation of Moses – and, they are of a legal, particular and conditional nature, bound to and dependent upon particular conditions and circumstances. For example, laws of slavery begin with a commandment of a legal, particular and conditional nature: “If you buy a Hebrew servant, (then) six years he shall serve” (Exodus 21, 2). The conditional form (if, then) indicates that the law is bound to and dependent upon a particular case or set of circumstances, and not an absolute commandment, as in the case of the ten statements. The law does not require or prohibit in an absolute sense that one own a servant. Rather, the law regulates the conditions in which one may own a servant. Not only is it difficult for contemporary non-Jews to relate to such laws, but also it is difficult for contemporary Jews to relate to such laws – as such conditional laws reflect particular social conditions of an ancient agricultural society in which there is slavery, and an ox gores an ox or an ox falls into a pit.


It is clear that the commandments of the Torah reading of Mishpatim are not of a transcendent moral and universal nature as those of the ten statements but of a legal nature relevant to the particular society in which the Israelites live, and with which they are familiar – as conditional laws of a legal nature were known throughout the ancient near east long before the Hebrew Bible, and appear in the Babylonian law code of Hammurabi or ancient Hittite law codes. However, absolute, moral commandments of God, such as characterize the ten statements, have no precedent, and are not to be found outside the Bible in other ancient near eastern law codes and literature.


The great revolution of the Bible is reflected the ten statements and the absolute and universal form of the commandments of the ten statements. In the surrounding pagan cultures in the ancient, Biblical world, the gods were conceived of as forces or powers of nature that were powerful, but not inherently or necessarily moral – and thus act within nature, and influence human affairs, not as an expression of moral will but as an expression of their power. The gods in the pagan conception can be influenced or appeased by offering sacrifices, or by performing some other ritual practice – and, ritual practice is conceived as the very essence of religion.


The great revolution of the Hebrew Bible is the way in which God is conceived (as a moral God who demands morality), as reflected in the opening statement of the ten statements in which God is presented not as the Creator and Ruler of the universe (as a God of power), but as the God of Israel (as a God of revelation and redemption) in redeeming the people Israel from slavery and oppression (“I am the Lord your God who has brought you forth out of the land of Egypt, out of the house of slavery”). From this, that God acts within history to redeem the people Israel from oppression, we infer that God necessarily demands morality – and, this revolutionary conception of God in turn transforms the essence of religion from ritual practice (as in the pagan conception) to morality. Thus, for the first time in human history, there is a necessary connection between religion and morality, in which the very essence of religion is conceived to be morality.


Civil law codes that preceded the Bible in the ancient near east, such as the law code of Hammurabi, were promulgated in the name of a particular god or gods, or in the name of the king who was viewed as a deity, so that civil law was seen to be within the larger confines of religion as in the Bible. Furthermore, there is also prior precedent in the ancient near east (both in Egypt and Mesopotamia) for the wisdom literature of the Bible (the Book of Proverbs, the Book of Job, the Book of Ecclesiastes and various Psalms) in which human wisdom is seen as a legitimate source of moral guidance independent of Divine revelation. However, there is no prior precedent whatsoever for the revolutionary idea of the Hebrew Bible that God demands morality (and commands absolute and universal moral imperatives, as reflected in the ten statements) as an inherent part of God’s moral nature, and that morality thus constitutes the very essence of religion.

Jeffrey Radon

Author of orthopraxjudaism.com

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