Note: This week's parsha, with its very many laws governing everyday Jewish behavior, is perfect for the analysis of a law student. We therefore are pleased to present some Torah from a sociologist!
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In many parts of the Torah, one must carefully read between the lines in order to grasp the intended moral lesson. But this parasha is very explicit in telling us how to behave. Not only are these rules very explicit, they are also abundant and touch on almost all aspects of how people should behave towards another. Thus this parasha is a foundation of our people’s moral code, but I have many conflicting reactions to it.
In this parasha, we immediately see a great concern with the poor and the vulnerable.
“You shall not ill-treat any widow or orphan.”
“You shall not subvert the rights of your needy in disputes”.
“Leave your field to rest in the seventh year and let the needy of your people eat from it.”
“If you lend money to the poor, do not act as a creditor, exact no interest from them.”
”If you take your neighbor’s garment in pledge, you must return it before the sun sets. It is his only clothing, his sole covering.”
In short, right here are many of the passages which form the basis for our historic concern with tzedakah and tikkun olam. Yet while these passages provide an important inspiration and justification for these activities that are so dear to me, they are not the whole story. Other parts of this parasha show far less compassion. We see in the first law of the parasha that the Torah countenances slavery; the Torah also mandates that whoever lies with a beast must be put to death. And even though I am a parent, putting to death someone who insults his mother or father seems extreme.
One can try to resolve the apparent conflict between compassion and harshness by noting that ancient Israel had many features of what cross-cultural social psychologists call a collectivistic culture. Such cultures have very strong emphasis on loyalties to an in-group, such as an extended family or village and sometimes to an entire people. While such cultures show a great deal of concern for the survival and well-being of others in the in-group, a great deal of conformity is demanded in return, and harsh punishments are administered to those who violate the rules. Group solidarity is not built through allowing people to do their own things. Moreover, such cultures often show little concern for the well-being of outsiders. Consistent with such an interpretation, the Torah has many examples in which God helps the Israelites destroy other peoples, sometimes for no other reason than that they are on land which God has promised to the Israelites. Furthermore, the Torah itself is meant to be a unifying, perhaps even other-excluding, force for this in-group. Rashi makes a similar comment on the verse "These are the laws that you shall place before them." As Rashi says, God has instructed Moshe to teach the Torah, or at least this civil code, to the Jews only, and not to any other cultures.
Many of us are aware that as Judaism has evolved, rabbinic law has shown more compassion, even for wrong doers, and more concern for non-Jews as well as Jews. For example, Talmudic and later rabbinic commentators are quick to insist that "an eye for an eye" refers to monetary compensatory damages, and not to retributive disfiguring. Likewise, we can see the rabbinic expansion of pikuah nefesh to non-Jews (even if perhaps for less than altruistic reasons). What is interesting is that for all the harshness advocated in this parasha, this very parasha also shows many signs of compassion for outsiders, and even enemies. Twice this parasha tells us “Do not oppress the stranger, for you were strangers in the land of Egypt.” And while it does not tell us to love our enemy, it does say, “when you see your enemy’s ox or donkey wondering, you must return it to him. When you see the donkey of your enemy lying under its burden and would refrain from raising it, you must none-the-less raise it with him.”
Aside from the tension between compassion and harshness and the tension between loyalty to in-group and a more universalistic ethic, I see still another tension: the tension between simplicity and complexity. Many of the rules in this parasha are stated without qualification. Those who insult their parents or lie with an animal are to be put to death. The circumstances are irrelevant. However, in other parts of the parasha, we see a rather sophisticated consideration of how the circumstances surrounding an action should make a great deal of difference. We see that when an ox gores a man or woman to death, the ox shall be killed but the owner shall go unpunished. But in the next verse, we see that if the ox has been in the habit of goring and the owner though warned, has failed to guard it, then the owner and the ox shall be put to death. In short there is a clear distinction made between a tragedy which could not be anticipated and criminal negligence.
Similar distinctions can be found in discussion what happens to the tunneler (i.e. the burglar). If such an intruder is caught breaking and entering at night he may be killed. In he is caught in daylight, killing him would be a crime. I have read that this distinction is based on the assumption that the night burglar was committing his crime knowing that people would probably be there and was, therefore a threat to their lives.. On the contrary, if this were to occur in the daylight, where the presumption is that residents are not at home, there is no similar threat to the residents. A similar complexity can be found in laws about looking after someone’s property. If I give you goods for safekeeping and they are stolen, you are not responsible. But if it were an animal you are watching, you are held to a higher standard of responsibility and may be held liable for inadequate care of it. We again see this complexity right at the beginning of Ch. 21, where we are told that after 6 years a slave shall go free, unless he or she does not wish to do so.
Thus, while some of the moral dictums in this parasha seem like the work of simple but stern country folk, others sound as if they were written by lawyers! But this code is notably different from the work of other great lawyers of the ancient world. For example, Hammurabi’s code stated that if a noble kills or injures a commoner, he must pay a fine. Only if he kills another noble does a principle such as “an eye for an eye” obtain. By contrast, in the laws of this parasha, the killing of any human being, even one’s own slave, is a serious crime. Moreover, the punishments and damages meted out for physical harm to another do not appear to depend on the social class of the killer or victim.
So it seems to me that conflicting tendencies in this parasha represents a turning point in the history of ancient Israel. It marks a step away from an exclusive concern with our own people and towards compassion for others, even our enemies. But it also marks the beginning of a more sophisticated and nuanced view of right and wrong and of crime and punishment. One needs only look to the difficult and confused morality of the stories in Genesis to see how far we have come in Mishpatim.
Like the great empires, with their literate elites and sophisticated legal system, the Torah contains a complex legal code of behavior. But the Torah's code also expresses the values of a people with far more egalitarian values and living conditions. And I think this helped us on the road toward becoming a culture in which literacy and complex reasoning were not the exclusive preserve of scholars but were widespread.
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