Parashat Mishpatim 5779

We the People, in Covenant with God
A D’var Torah for Parashat Mishpatim
By Rabbi Len Levin

“And these are the rules that you shall set before them.” (Exodus 21:1)

Who are the them before whom God instructs Moses to set the rules in this week’s portion?

Rashi, following the Talmud (Gittin 88b), interprets this verse as teaching that the judicial rules are to be entrusted to the ordained Israelite judges, not to gentile courts or to Israelite lay persons. On this reading, them refers to the judges (playing on lifneihem to suggest lifnim [within]—a subset of the people).

But the context of this passage suggests a broader audience. This verse is a continuation of the speech beginning in Exodus 20:19: “The Lord said to Moses: Thus shall you say to the Israelites: You yourselves saw that I spoke to you from the very heavens.” On this contextual reading, the rules of Parashat Mishpatim are addressed and entrusted to all the Israelites. This is strengthened by the continuation: “When you acquire a Hebrew slave…” The “you” of this injunction is the common Israelite.

The content of the laws in Chapters 21 through 23 suggests a combination of both interpretations. The majority of the rules are for settling disputes between two parties: if A’s ox gores B’s ox, the damages shall be assessed according to such-and-such a formula, and similarly in cases of theft, negligence, accident, or mayhem (21:18–25, 28–37; 22:1–14). Male and female slaves have thus-and-such rights (21:2–11, 26–27). Certain offenses incur capital punishment (21:12–17). All such cases must be decided by courts. In a few places, the text stipulates: “they shall bring the matter before God [i.e., the judges]” (21:6, 22:7–8).

But there are also rules that according to common sense are left to the initiative of every individual to observe: the obligations due to male or female slaves; returning lost objects (23:4); giving roadside assistance (23:5); showing compassion to the poor or the stranger (22:20–26); observing the festival pilgrimages and the Sabbatical year (23:10–17).

One of the most suggestive and enigmatic sets of rules falls between the cracks of this distinction:

You must not carry false rumors; you shall not join hands with the guilty to act as a malicious witness: You shall neither side with the mighty / multitude [rav] to do wrong — you shall not give perverse testimony in a dispute so as to pervert it in favor of the mighty [rabbim—or: to follow the multitude to do evil] — nor shall you show deference to a poor man in his dispute. (23:1–3)

There are important lessons in both possible translations of rav / rabbim as either “mighty” or “multitude.” Justice can be perverted in many ways. One way is to show undue deference to the mighty and powerful and exonerate them despite evidence pointing to their guilt. Another is to be caught up in the passion of a lynch mob, where rumors and bigotry sway masses of people to persecute innocent victims. In each of these scenarios, responsibility falls both on the official custodians of justice and on the general populace to hold to the path of integrity and not be swayed by irrational influences, whether from the might of the few or the hysteria of the many, nor to participate in these injustices in any way. A just society requires the idealism and integrity of its leaders, rulers, and judges; but there is a reciprocal relation and influence between these and the moral commitment of its ordinary citizens.

In the end, the Jewish tradition adopts both interpretations of “them” in different ways. In the rules governing courts, the authority to render judgment was restricted to those duly knowledgeable and qualified. The more severe cases were entrusted only to those judges who had received semikhah from the elders in Eretz Israel. Even ordinary commercial matters required, at a bare minimum, a court of three that included at least one scholar well-versed in rabbinic law. (Shulhan Arukh, Hoshen Mishpat §1, §3)

On the other hand, it was incumbent on every Jew to study Torah, and the most popular parts of the traditional curriculum included those parts of Talmudic civil law that had application to everyday experience, especially the laws of custodianship and returning lost objects in Bava Metzia. Rabbi Israel Salanter was reputed to have said that just as a certified butcher needed to be knowledgeable in the laws of kosher slaughter, so an ordinary businessman should be knowledgeable in the Jewish laws of business ethics. (See https://torah.org/series/business-halacha/.)

The ethical idealism in the Bible spread beyond the confines of the Jewish people. In 1789, a Protestant clergyman in Massachusetts delivered a sermon, prior to the first national election in the United States. He chose as his primary text Psalm 82:1: “God standeth in the Congregation of the Mighty: He judgeth among the Gods.” Mr. Josiah Bridge was knowledgeable enough in the Hebrew Bible to be able to interpret “the Gods” in this verse as referring to the judges. He observed: “It will as fitly apply to our civil fathers now before God, as to the Jewish Sanhedrim of old.” (See https://wallbuilders.com/sermon-election-1789-massachusetts/#.)

Indeed, Mr. Bridge’s sermon delved deeply into the legislation and history of the Torah, including Jethro’s advice to Moses and the appointment of the seventy elders who were the prototype for the Sanhedrin (Exodus 19, Numbers 11). His message to the people of the newly constituted republic of the United States was that they, like Israel, should consider themselves covenanted to God, to assume the responsibility for following God’s teaching in order to constitute a moral society—a responsibility incumbent especially on the leaders, but also on the people as a whole. His message is still valid for our time.
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Rabbi Len Levin teaches philosophy at AJR and is the editor of Studies in Judaism and Pluralism: Honoring the 60th Anniversary of AJR.