Parashat Mishpa'tim, Exodus 21:1 - 24:11

This week’s portion – Mishpatim, or The Laws – is a direct continuance to last week’s portion. As you may recall, last week the Children of Israel have received their Constitution – the famous Ten Commandments, painting in very broad brush-strokes all the things they should do – such as recognizing our One God, keeping the Shabbat, and respecting our parents – and some they should not – such as not to steal, not to murder, or not to covet.

As I have explained last week, this providing of one law to the entire people of Israel was quite a novel idea, and also (possibly) a consequence of Moshe’s heeding his father-in-law's advice and departure from his role as a sole arbiter of the people’s grievances. Now that other people were in charge of the day-to-day legal system, they – and the people they judged – deserved to know (to quote the American Supreme Court some 200 years ago) “what the law is.” And the law IS the Ten Commandments, but it is also many more “small commandments,” dealing not only with the most egregious of violations and heinous of crimes, but with many every-day occurrences that require answer. This is the issue of this week's portion – the many laws that will shape the behavior – both criminal and civil – of the community for generations to come.

There are many “legal” things to say about these laws, including their beautiful consistency, hierarchy, internal logic, and practicability. But I am afraid this will be of little interest to the non-lawyer readers of this blog. Besides that, however, what do strikes me, more than anything else, when I read this set of laws each year anew is how smart were the people who wrote them back then, and how relevant they still are today (or, put differently, how little has change). To take but a few of my favorite examples: “And bribe you shall not take, as bribe will blind the eyes of wise men, and contrive the words of the righteous ones.” (Exodus 23:8); “And you shall not wrong a foreigner (or non-citizen) and you shall not oppress them, as you yourselves were foreigners in the land of Egypt.” (22:20); and there are many more, including, most importantly, the first official recognition of a woman's right to be supplied with food, cloths, and conjugal rights. (Ex. 21:20)

Today I want to demonstrate how two laws, well-established in their day and well understood, have undergone a transformative change over the years – and today are used for something completely different than that originally intended.

An Eye for An Eye

This week’s portion introduces, for the first time, the notion of “an eye for an eye.” What is amazing to me is how this sensitive, carefully-calculated formula of compensatory damages turned over the years into the rallying cry of over-zealous state prosecutors, who demand “justice” (euphemism for death penalty) for the criminals on trial. Let me explain. First, let us see the context in which the term appears. The “eye for an eye” term – sometimes referred to today as the “Talion” – appears in the context of a series of laws pertaining to brawls. Before the talion we have two people fighting with each other, a person hitting their slaves – male of female, and (right after) a person injuring their slaves – taking out their eye or teeth. It is clear, therefore, that we are deep in the realm of tort law – that is, civil law – and not criminal law. The question is: what is the proper compensation for a damage occurring during a fight. And the case at bar is fascinating [in parens, my comments], Exodus 21:

“[22] When [two] men fight [both free men], and one of them [accidently?] hits a pregnant woman, and her child are [forced] out, and no other tragedy occurs, the penalty [for the hitting person] would be in the amount that the Husband of that woman determine on reckoning; [23] But if a tragedy occurs, then you [the hitting person] shall give life for life, [24] eye for an eye, tooth for a tooth, arm for an arm, foot for a foot, burn for a burn, wound for a wound, and bruise for a bruise.”

It is clear, therefore, that the text made an attempt to cover as many incidents bound to happen when two men are fighting. This is a fascinating issue, then as today – the protection of fragile groups of victims (like minors, elderly, and pregnant women) who suffer due to violence in the community – and the biblical text provides a well-measured response, determining, first, that this kind of injury should be compensated; that is – these people are protected; and, second, the protection is complete – for every damage they have suffered, for every bruise, injury, or lost limb – to them or to the babies – they should receive the exact same worth.

Now to take this carefully-calculated compensation formula and turn it into the theoretical basis for (criminally) executing many an innocent victim – just because it “sounds good” (“The bible teaches us: Eye for an Eye. You, the jury, must give this man a taste of his own medicine; send him to death!”) – that is simply beyond me.

Kashrut Laws

Not too many are aware, but the entire corpus of the Laws of Kashrut (or dietary laws) stands on a single verse appearing in this week’s portion. [To be sure, there are many other verses relating to what a Jewish person may or may not eat; this one, however, is the lynchpin]: “Though shall not boil a kid in its mother’s milk.” (Exodus 23:19).

This seemingly innocuous prohibition, which was prescribed – according to some of the commentators – in a direct response to other regional nations’ “special treat” during feasts (that is, the actual cooking of a young kid in its mother’s milk), was apparently designed to separate us from all other nations. We, the Jewish people, would not do such a thing. But then again, how would we know whether or not we’re cooking a lamb in his mother’s milk? Better to separate all lamb meals, and all milk meals, for a few hours. Better yet, better to separate all lamb meals, and all milk-product meals, for several hours – who knows, perhaps the cheese we're eating contain some of the mother's milk. To be completely safe, let us separate all meat-based products (not only lamb) and all milk-based products (not only milk) for several hours. Once we have done that, let us assure that those two groups of products will be consumed in the same dishes – two sets of dishes is warranted. And the washing of those dishes should be done in two separate sinks. Voila. And here we are, more than 3,000 years afterwards, with a very specific set of laws regarding the strict separation of meat and milk. Every single product that comes to our mouth is labeled: Is it milk? Is it meat? Is it Neither? Every single meal is carefully planned so it would not violate the other.

And all of this comes from a single verse – "Though shall not boil a kid in its mother’s milk." Amazing.

Shabbat Shalom,

Doron