This week’s portion – Mishpatim, or The Laws – is a direct continuation of last week’s portion. As you may recall, last week we read of how the Children of Israel received their Constitution – the famous Ten Commandments. Those majestic provisions painted in very broad brush-strokes a picture of the actions those people should take – such as recognizing our One God, keeping the Shabbat, and respecting our parents, as well as some of those they should not – such as not to steal, not to murder, or not to covet. This week, we move from the constitution the laws; from the general to the particular; from the majestic to the (somewhat mundane). But there is more here.
As I have explained last week, the notion 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 departing from the role of a sole arbiter of all the people’s disputes and controversies. Now that other judges were in charge of running the daily affairs of the legal system, they – and the people who were subject to their authority – were entitled to know (to quote the American Supreme Court some 200 years ago) “what the law is.” And the law IS the great 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 a legal solution. This is the issue of this week's portion – the many laws that will shape the behavior, both criminal and civil, of the Jewish community for generations to come.
There are many “legal” things to say about these laws, including their beautiful consistency, hierarchy, internal logic, and practicality. But I am afraid all this would be of little interest, if any, to the non-lawyer readers of this blog. But even beyond the many legal aspects, one cannot escape a sense of awe when reading those ancient laws: how smart were the those people who authored those law back then, how relevant they still are today (or, put differently, how little has change in the past 3,000 years). 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. 21:10).
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 completely different purposes than those originally intended.
I. “An Eye for An Eye”
This week’s portion introduces, for the first time, the notion of “an eye for an eye” (Ex. 21:22-25; the term appears twice more in the Chumash; see Levit. 24:17-22; Deut. 19:16-21). It is interesting to note how this well-measured, carefully-calculated formula of compensatory damages turned over the years into the rallying cry of some over-zealot state prosecutors (primarily in some Southern states) who demand “justice” (euphemism for the death penalty) to the criminals they put on trial. Let me explain. First, let us see the context in which the term appears in this week’s portion. The “eye for an eye” term – sometimes referred to today as the “Talion” – appears in the context of a series of laws pertaining to physical altercations. Before the talion itself is mentioned, the text two incidents: the first of two (free) men fighting with each other, and the other of a (free) man hitting his slave - either male or female slaves. In both instances, it is clear the remedy for any injury caused is monetary; in other words, we are in the realm of civil (tort) law, where injuries are compensated by money, and not in the realm of criminal law, where injuries are punishable by imprisonment, maiming, or death. It is in this context that we reach the talion. Here is the full text of Exodus 21:22 et seq., with my comments in parenthesis:
“[22] When [free] men fight, and they [accidentally?] injure a pregnant woman, and her children have come out [she gave birth prematurely], and no other tragedy occurs, the penalty [for the hitting person] would be in the amount that the husband of that [pregnant] woman would determine and was given by the court; [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 should be protected by law; and, second, that such 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 a full compensation for that very same amount.
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.
II. 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 cook a young goat in his 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, let us separate all lamb meals, and all milk-product meals, for several hours – who knows, perhaps the cheese we're eating contains 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 never be consumed in the same set of dishes – rather, 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 those laws.
And all of this comes from a single verse – "Though shall not cook a young goat in his mother’s milk." Amazing.
Shabbat Shalom,
Doron
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