The Weekly Commentary of JTS KOLLOT: Voices of Learning
Exodus 21:1 - 24:18
February 21, 2004 29 Shevat 5764
This week's commentary was written by Rabbi Lewis Warshauer, JTS Rabbinic Fellow
Words can be similar but carry different connotations. "Legal" has a good connotation. "Legalistic" does not. Judaism is often accused of being too legalistic. This charge has been leveled not just at the Judaism of the Talmud and subsequent law codes, but also against many of the laws enumerated in the Torah itself. Too often, there is a tendency to take the Ten Commandments (found in last week's parasha) as the only commandments.
The truth is that they are just the beginning; the crucial details begin with the plain introductory statement at the beginning of this week's parasha:
"These are the mishpatim that you [Moses] shall set before them [the Israelites.]" (Exodus 21:1)
The Hebrew word mishpat (plural: mishpatim) does not have just one translation. Menahem Elon, a former justice of the Israeli Supreme Court, explains that the word means several things: court judgments; a system of laws and precepts; legal rights; and fixed customs or usages. (Jewish Law, pp. 105-7)
Rabbi Shimon bar Yochai, a 1st Century C.E. sage, appears to understand the word mishpatim as meaning court judgments. He asks why the parasha would begins by laying out the necessity for court judgments before listing individual mitzvot (Mekhilta, Mishpatim, Nezikin 1). He answers by saying that when people are contending with each other in court, strife prevails; when a judgment is rendered, peace is achieved . To prove the point, Rabi Shimon quotes Moses's father-in-law Jethro who, after advising Moses to set up a court system that would facilitate the rendering of judgments, explains the benefit: "And all the people shall go to their place in peace." (Exodus 18:23)
Giving a somewhat different view, Professor Zev Falk, ("Hebrew Law in Biblical Times", p.25) describes what all definitions of mishpat have in common: an action taken in favor of a weak petitioner against a strong adversary.
These explanations vary one from another. Yet they all strive to achieve an ideal society while recognizing that contemporary reality falls short. It would be better if people did not harm their neighbors and their neighbors' property, and if the strong did not take advantage of the weak. But since all this does occur, it is the job of the law to mitigate what it cannot eliminate. At the same time, Jewish law, as expressed in the Torah and subsequent legal development, does not merely list rules and penalties for disobeying them. More than any secular legal system, it holds out hope for a society of harmony and individual and group well-being.
Rabbi Lewis Warshauer