Parashat Mishpatim

by Rabbi Michael Pitkowsky

In his comments on this week’s parashah, Yeshayu Leibowitz pointed out an interesting comment by the Gaon of Vilna on Exodus 21:5-6.

But if the slave declares, “I love my master, and my wife and children: I do not wish to go free,” his master shall take him before God. He shall be brought to the door or the doorpost, and his master shall pierce his ear with an awl; and he shall then remain his slave for life.

The Gaon makes the following comment in his book Aderet Eliyahu on these verses.

“Or to the doorpost”: The simple meaning of the verse is that the doorpost (mezuzah) is also valid, but the halakhah uproots scripture (אבל ההלכה עוקרת את המקרא), and so it is in the majority of this parashah, and in a number of parshiyot in the Torah, and this is the greatness of the Oral Law that it goes back to Moses at Mount Sinai (הלכה למשה מסיני) and “It changes like clay under the seal” (Job 38:14). It is also written in the Tractate Makkot (22b) “How stupid are the rest of the people who stand up before a Sefer Torah but not before a great person, for the Torah says forty [lashes] and the Rabbis took one away.”

The Gaon’s comments are influenced by the interpretation found in the Tannaitic midrashim that only the door, but not the doorpost, is valid for piercing the ear of the slave (see Mekhilta, Mishpatim, Massechet Nezikin, parashah 2 and Sifrei Devarim, par. 122). These midrashim seem to go against the Torah itself. It is therefore not surprising that the claim “the halakhah uproots scripture (אבל ההלכה עוקרת את המקרא)” is found in numerous variations in a number of places. Sometimes the halakhah is described as “uprooting”, עוקרת, scripture, while other times it is “bypassing,” עוקבת, scripture. One source is b. Sotah 16a.

As Rabbi Yohanan said in the name of Rabbi Ishmael, “In three places halakhah bypasses scripture: The Torah said “with dust” (Lev. 17:13) and the halakhah is with anything; the Torah said “with a blade” (Numbers 6:5) and the halakhah is with anything; the Torah said “book” (Deut. 24:1) and the halakhah is with anything.

From the above quoted sources we can learn that the sages, both ancient and more modern, were often living in tension between their fidelity to the Biblical text and the belief that they had the freedom to offer interpretations that sometimes seemed at odds with the Bible itself.

Rabbi Michael Pitkowsky is the AJR Rabbinics Curriculum Coordinator.