Parashat Mishpatim

Exodus 21:1–24:18
February 13, 2010 / 29 Shevat 5770

This week's commentary was written by Rabbi David Hoffman, Scholar-in-Residence, Development Department, JTS

Does the text of the Torah really mean what I am claiming it means or am I reading too much into it?

Am I pushing my own agenda and value system on words that intend something else?

What are the larger religious values that animate certain laws of the Torah? How does my own value system influence my reading of Torah?

Of course, these are some of the central questions we as readers face with each chapter of the Bible. For those of us who believe that the Torah expresses the divine will, these questions assume great urgency. If we believe that God does have a will for our lives and for the world, we must be vigilant against simply projecting our own values and desires onto the text. Yet we will never be able to take the human element of reading out of the equation as we try to understand God's hopes for the world.

Unlike the world that Rashi or Maimonides lived in, our culture demands that we reflect on the motivations behind our interpretations and realize that every explanation that we offer represents a choice to some extent. With every reading of scripture we propose, we must acknowledge that our particular reading is inextricably shaped by our personal experiences, values, and religious commitments. In a post-Freudian world, we realize that sometimes we are not even fully aware of the motivations that move us.

Let's consider one example from this week's parashah that plays out some of the concerns and questions detailed above. Exodus 21:37 states: "When a man steals an ox or a sheep, and slaughters it or sells it, he shall pay five oxen for the ox, and four sheep for the sheep."

The Torah institutes a severe penalty for stealing livestock. The thief must pay in kind fivefold for the ox and fourfold for the sheep. Seemingly, the severity of the punishment intends to serve as a deterrent. But how can we explain the difference in compensation for the two animals? Does the discrepancy in fines to be assessed actually express a divine commitment to a particular religious value?

Well, the Torah is silent. No explanation is offered for the difference between the two fines assigned to the thief of an ox and the thief of a sheep. However, this silence represents an opportunity for interpreters of the Torah to tease out the values that they believe animate this law.

For instance, Philo (first century, Egypt) explains this law as follows: "And on this account the Lawgiver has not affixed a fine of equal amount to the theft of each animal, but having calculated the use of both and the purposes for which both are available, God has appraised their value in this way" (Special Laws IV, 11). Philo argues that because an ox performs invaluable tasks required for human sustenance, like plowing and threshing, the ox is worth more than a sheep. The value of the animal to human beings determines the severity of the fine.

Rabbi Meir offers a similar interpretation to Philo, yet he places the emphasis in a different place. Rabbi Meir explains the discrepancy between the fines for stealing an ox and a sheep in the following manner: "Come and see how precious work is for He-who-spoke-and-the-world-came-into-being! The ox works—therefore one pays five-fold, and for the sheep which does not work—one pays a fine of four-fold" (Mekhilta, a midrash redacted in the second half of the third century CE).

This explanation of our law is different from Philo's because the emphasis is not on the financial loss for the owner but on a more abstract appreciation of the value of labor. Rabbi Meir argues that God values hard work and the ox works hard. Consequently, the fine assessed to the thief for stealing an ox is greater than that for stealing a sheep. Sheep do not perform work; they lounge around and graze. They simply benefit human beings through their fleece, milk, and meat.

Maimonides takes us in a different direction entirely. He proposes the following explanation for our law:

[T]he more prevalent a transgression, the more serious the penalty to act as a deterrent. The less frequent the crime, the less severe the penalty . . . For the theft of an ox the Lawgiver increased the penalty to five-fold because the offence was easier to commit. Sheep are easier to guard since they keep together. But large cattle are widely scattered in the pasture and it is impossible for the shepherd to keep his eyes on them all the time. Hence ox stealing is more frequent than the stealing of sheep. (Guide of the Perplexed 3, 41)

Maimonides uses our example (Exod. 21:37) in order to make a more general claim as to the relationship between a transgression and its penalty. More serious penalties are needed for those sins that are easier to perform. For sins that are readily accessible and tempting, a more severe penalty keeps us in check.

In the absence of a rationale for our law, Philo, Rabbi Meir, and Maimonides all proffer different explanations. Philo suggests each fine reflects the worth of the object stolen. Rabbi Meir argues that the increased fine for stealing an ox communicates God's love for hard work. Maimonides conceptualizes the penalty for the thief within a larger framework of the relationship between transgression and punishment. That is to say, for a sin that is easily performed, the punishment must be greater than for a sin that is less easy to carry out.

All of these interpretations of our law offer us something, but it is Rabbi Yochanan ben Zakkai who sees within this very small and seemingly inconsequential detail, a powerful religious message: Rabbi Yochanan ben Zakkai said, "Come and see how much God cares about the dignity of human beings!" Because an ox moves by virtue of its own legs, a thief pays five times the original value. Whereas for a lamb, because the thief must carry it on his shoulders, the punishment is only four times the original value.

Is this the original intent of the law? Is this really the reason that might explain the difference between amounts for the fine—who is to say? What we do know is that in an unlikely place—during a discussion about the fiscal penalties for a thief—Rabbi Yochanan ben Zakkai expressed his profound commitment to the idea that God cares about the dignity of every human being, even sinners. Rabbi Yochanan ben Zakkai offers the almost too-compassionate suggestion that because a thief must compromise his human dignity in the act of carrying an animal away (even as he is stealing it!), the fine assessed is mitigated.

Rabbi Yochanan ben Zakkai seemingly read every sentence of the Torah based on the values he learned from other sections of the Torah. The book of Genesis repeats the idea that human beings are created in the image of God (1:27, 5:1). The Rabbis of the Talmud understood this bold statement to mean that human beings have inherent dignity and worth as a result of being a reflection of the divine image. As the Rabbis of the Talmud of the Land of Israel state, "This is a great principle of Torah!" For Rabbi Yochanan ben Zakkai, the notion of human dignity served as the lens through which he read every word of the Torah.

Reading and making meaning are complicated processes, especially when what is at stake is nothing less than an understanding of God's will and hopes for humanity.

There is no escape from an element of subjectivity in our interpretations of God's law. However, we must be conscious and reflective of the values and ideas that invariably influence our understanding of God's will.

The publication and distribution of the JTS Commentary are made possible by a generous grant from Rita Dee and Harold (z"l) Hassenfeld.