Dvar Torah: Mishpatim

By Editor | Blogs

Feb 26

Here is the Dvah Torah that Marylou Grimberg prepared before we knew Rabbi Adam was visiting.  However, we still wanted to publish on our site.  Thank you Marylou for sharing it with us.

Veyavo Moshe ve yesaper l’am et kol divre adonai . . .
Moses went and repeated to the people all the commands of the Lord and all the rules, and all the people answered with one voice, saying ‘All the things that the Lord has commanded we will do’. [Exodus 24:3]

Then, at the foot of the mountain, with appropriate sacrificial ceremonial the covenant between God and the children of Israel, our ancestors, is sealed.  After this Moses goes back up the mountain and eats a meal of affirmation in the presence of God.  For this reason this sedra, Mishpatim, is also known as Sefer haBrit, The Book of the Covenant.  The 53 ordinances, although they are but a small percentage of the final 613 commandments, are the foundation of the law.  They are a vital milestone in a long journey, and therefore worth investigating with some care.

Some of the ordinances are disturbing.   For example, the calm acceptance of slavery by a people who have just escaped from slavery themselves is startling.  Then there is the case of the ox that gores and kills someone and must be stoned to death.  This is hard to accept.  I hear the poor beast’s desperate bellowing, see its terrified eyes.  Why such cruelty?

Some of these problems may be alleviated by recognising that the Written Torah is not as straightforward as it initially appears.  It exists side by side with, and must be understood in conjunction with, the Oral Torah, and it turns out that there are layers of meaning.  Ultimately, in many cases, less disturbing explanations and interpretations are arrived at. However, sifting through the layers is a task to which scholars devote a lifetime.

We don’t have a lifetime.  We have about ten minutes, so I have chosen one of the ordinances, the eye for an eye and tooth for a tooth injunction, to demonstrate very briefly what one such reassuring interpretation looks like.  From this perhaps we can tentatively conclude that other troubling passages may well seem less disconcerting, less alien, when revisited in the company of the Oral Torah.

Not only is the eye for an eye ordinance one of the best known and most quoted sayings in the entire Tanakh, it is also possibly one of the most misunderstood.  It is also widely known as Lex Talionis, or The Law of Retaliation.  This is a gross misnomer, because more accurately it is a law intended, as one of its effects, to limit excessive retaliation.  It is about justice, not revenge.

Even more significantly, the Oral Torah teaches us that this ruling should be understood figuratively, not literally. Scholars reach their conclusions by, among other things, following linguistic and textual clues, by paying attention to the actual words used and to other contexts in which the same words and phrases appear.   We don’t have time to follow that route, but must skip to the final interpretation which is that if a man injures another man he must make appropriate financial – not physical – reparation.

This might be seen as a latter day attempt to make Jews and Judaism seem less vindictive, less Shylockian, nicer.   However, Maimonides said:  ‘There never was any Rabbi, from the time of Moses who ruled, based on “an eye for an eye,” that he who blinds another should himself be blinded.’   Before Maimonides Ibn Ezra took a similar position, as did the sages of Babylon (with the possible exception of Rabbi Eliezer).  So this takes us from the 21st Century through the 12th and the 10th to the 6th or even right back to the 1st Century CE.  Or, as Maimonides says, to the days of Moses himself.

So this gentler, financial interpretation is definitely not a 21st century attempt at a whitewash or a rewriting of Jewish attitudes.

Crucially, understanding the wording of this ordinance to be figurative makes good sense. How is a blinded person helped by the assailant also being blinded?  And what if one of the two people involved only had one good eye to begin with?   This way, judges can arrive at decisions case by case.  So the question now is:  Why on earth have a figurative formulation in the Written Torah in the first place?  Why not just cut to the chase and come straight out with what is really intended – financial reparation?

When Rabbi Avraham Yitzhak Kook, the first Ashkenazi Chief Rabbi of Mandated Palestine, was asked this question he responded with a parable.   Briefly:  A young boy transgresses in some way.  The father, enraged, raises his hand to strike him but the mother, full of compassion, intervenes to protect her child.  The father lowers his hand, they talk it over and an alternative, non-physical punishment is imposed.

The important thing is that as a result of his father’s anger and the threat of violence the boy realises the gravity of his offence and, although due to his mother’s intervention he is spared harsh physical chastisement, the threat of such punishment teaches him a lesson which (with luck) he won’t forget.

Rabbi Kook explains that the Kabbalists compare the father to the Written Torah, whereas the mother is likened to the Oral Torah.  The value of the role of the Written Torah  – the father – is now apparent.  It highlights the gravity of certain transgressions.  In this case, if the Written Torah had taken us straight to the interpretation given by the Oral Torah it might seem that destroying a man’s eyesight is no more serious an offence than any other transgression that attracts a financial penalty – the destruction of property, say.  But it is more serious.  The written language is unequivocal on that point.

If a man deprives another of an eye, or a tooth, or a limb he deserves to lose an eye, a tooth, or a limb also.    The fact that he won’t, because it would be both unhelpful and impractical, is a separate issue.  What becomes apparent is that although the Written Torah is essentially about justice – both social and moral – there is also the issue of deterrence.

A story in the Gemara illustrates this:  Chanan the Bad appears before the Beit Din accused of hitting and injuring another man.  He is found guilty and ordered to pay half a zuz.  However, Chanan only has a battered one zuz coin which no one will change for him because it is in such bad condition although it is, presumably, legal tender.  Stalemate.  Chanan, however, as well as being bad is also resourceful and he obligingly resolves the impasse by hitting the injured man again.   The penalty is doubled, Chanan pays up, and they can all go home.

The point of this story is that Chanan is not in the least deterred by the certainty of the fine being doubled.  Indeed, it is his intention that it should be.  We can conclude from this that of itself a fine may not be much of a deterrent, especially if the offender is a wealthy man. This creates an obvious imbalance, within the law, between rich and poor.   One of the effects of the written Torah is that it redresses this imbalance (or it is hoped that it will), making the bellicose rich man think twice before using his fists, or some other blunt, or possibly sharp, instrument.

Maimonides writes that what the written Torah makes clear is that it is ‘fitting’ that the offender should suffer the same injuries as those he has inflicted. Tellingly, however, he also says that neither financial restitution nor offerings to God – ‘even all the rams of Nevayot’ – are sufficient for the offender to be exonerated.  He must also seek forgiveness from the person he has injured.

Interestingly, according to the Talmud, the injured man must not withhold such forgiveness. If he does he also sins.  However, if he nonetheless refuses to be placated, the original offender must seek forgiveness three times in the presence of witnesses.  If it is still withheld he has done all that is required of him (unless the injured man is his teacher, but that is a separate complication).

This is most satisfying – so much from one little ordinance.  There is no retaliation, no vengefulness, but no easy get-out clause for offenders either.  We can perhaps extrapolate from this that throughout the year and not just at Yom Kippur, we must all seek forgiveness, not only from God, but also from those we have injured in any  way.   What is perhaps more significant is that we ourselves are obliged to forgive.

Finally, in this story the mother and the father each has a distinct and equally valuable, and valued, role to play, which seems to me to be just as it should be.

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(1) comment

Moira Hart 27th February 2017

Hi Marylou – I have so often wondered about the sense of “an eye for an eye” and you have managed to explain it so clearly and in a very engaging manner. Thank you so much.

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