Chancellor's Parashah Commentary
Parashat Mishpatim 5760
February 5, 2000 29 Shevat 5760
Ismar Schorsch is the chancellor of The Jewish Theological Seminary.
The controversies of one era are not necessarily those of another. When a leader of the Southern Baptists can declare on the Larry King Show that the soul of a Jew is still destined to burn in hell, we are jarringly thrown back to the bigotry of an earlier era bloodied by religious persecution. Progress can be measured by the once bitterly contested issues that no longer get a rise out of us. This is the reason I continue to enjoy looking at the Hertz Humash. Produced in England under the leadership of Chief Rabbi Joseph H. Hertz in the third and fourth decades of the twentieth century, it resonates with the polemics of an era when much of the enlightened world, not to speak of the benighted, still harbored grave doubts about the religious worth of Judaism. Our adversaries often determine the emphasis of our thought.
In this vein, I wish to focus on a single verse (21:35) in the legal corpus of this week's parashah, which conceals a painful history of dispute and defamation. Its content has been compressed into a favorite simile in English for assessing self-interest: "It depends on whose ox is being gored!" In the new JPS translation (1985) the verse reads: "When a man's ox injures his neighbor's ox and it dies, they shall sell the live ox and divide its price; they shall also divide the dead animal." At first glance, the case seems to be a straightforward matter of civil negligence in which responsibility is equally shared by both parties. The old JPS translation (1917) renders the verse with a slight but significant difference: "And if one man's ox hurt another's, so that it died, then shall they sell the live ox, and divide the price of it; and the dead also they shall divide." What the new translates as "neighbor" the old translates as "another," and in that discrepancy is buried a world of bitterness.
At issue is the force of the underlying Hebrew term re'a literally, whose ox is actually being gored? Does the word mean "fellow" or "fellow-citizen;" is it any neighbor who might be living next to us or just an Israelite neighbor? More sharply, is the word re'a inclusive or restrictive, universal or parochial? The old JPS translation with its nondescript, unspecific choice of "another" clearly wants to convey the more inclusive sense. "Neighbor" sounds more ethnic, someone resembling us.
The word re'a, to be sure, is not uncommon in the Torah. We met it last week in parashat Yitro four times within the space of the last two of the Ten Commandments (Exodus 20:13-14) and in each instance both the old and new JPS translations render the term as "neighbor." But the ambiguity remains, as it does in the most famous injunction to "Love your fellow (old JPS "neighbor") as yourself (Leviticus 19:18)." Are we dealing with an ethic that applies only to Israelites or to all of humanity? On the prohibition of bearing false witness against your neighbor, Hertz takes the offensive:
The prohibition embraces all forms of slander, defamation and misrepresentation, whether of an individual, a group, a people, a race, or a faith. None have suffered so much from slander, defamation and misrepresentation as the Jew and Judaism. Thus, modernist theologians still repeat that, according to this Commandment, the Israelite is prohibited from slandering a fellow-Israelite; because they allege, the Hebrew word for neighbor (re'a) here, and in "Thou shall love thy neighbor as thyself" does not mean fellow-man but only fellow-Israelite. This is a glaring instance of bearing false witness against Judaism... (p. 300).
Nor is this the last time that Hertz will insist on the original and pervasive universalism of the Torah (cf., pp. 502, 563).
But, in truth, the Rabbis generally understood the term re'a narrowly. In the case of the goring ox, the Mishnah explicitly discriminates against the non-Jew: "If an ox of an Israelite gored an ox of a gentile [the Israelite] is exempt; but if an ox of a gentile gored an ox of an Israelite, whether [the damaging] ox was docile or violent [the gentile] must pay full damages (Baba Kamma 4:3)." Not only is there no liability when the ox of an Israelite gores that of a gentile, but in the case of a docile ox (that is without record of doing damage), where an Israelite would be liable for only one-half of the damages, the gentile is required to pay in full. Interestingly, the Talmud which is troubled by the arbitrariness of the law, does not explain it linguistically (that is the Torah says specifically "the ox of his neighbor" and not the ox of a gentile) but rather theologically. Prior to the revelation at Mount Sinai, God had imposed a covenant upon No·ah and his descendants to maintain a minimum standard of civilization (what in rabbinic parlance became known as the seven commandments of No·ah). When they failed to adhere, God declared their property to be free game for Israel. Hence the mishnaic law (B.T. Baba Kamma 38a). Yet in a remarkable display of self-criticism, the Talmud goes on to recount an official visit by a Roman delegation to the Rabbis in order to study the nature of the Jewish legal system. After much effort, they completed their examination. Before returning to Rome, they reported to the Rabbis who had hosted and instructed them, that they found everything to be admirable except for this specific mishnah, which they mercifully would not share with the authorities in Rome.
Rabbinic exegesis of the Torah provided ample grist for modern Christian scholars bent on using critical tools to reaffirm the theological superiority of Christian universalism over Jewish particularism. Notwithstanding, the "narrowness" of the Rabbis can be explained partially on the basis of their enormous feel for the overt and subtle meanings of the biblical text and partially on the basis of Roman dominance and Christian ascendancy which curbed Jewish expansion. The spirit of universalism expresses itself in the Torah not in the meaning of the word re'a, but in the countless references to the welfare of the stranger.
As for the traces of a double standard, the talmudic recourse to the No·ahide commandments incumbent on all humans also pointed the way to historicizing the law. Already at the end of the thirteenth century the Spanish Jewish halakhist Menahem Meiri claimed that the ancient discriminations were no longer applicable because the gentiles of his day abided by the No·ahide laws (David Novak, The Image of the Non-Jew in Judaism, p. 63). Similarly, in the twentieth century the great Orthodox master of rabbinic interpreters of Torah, Baruch Halevi Epstein, vehemently differentiated between the gentiles of his own day and those of antiquity (Torah Temimah on Exodus 21:35). After the Holocaust, though, his confidence in universal moral progress rings a bit hollow. I would prefer to contend that Judaism was not born perfect, but with a deep capacity to grow.
Shabbat shalom u-mevorach,