Parashat Mishpatim

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 about 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 the 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, to murder, or to covet. This week, we move from the constitution to the laws; from the general to the particular; and from the majestic to the (somewhat) mundane. But there is more here than meets the eye. 

As you may recall from last week, the Ten Commandments represented the idea of providing a unified code of conduct (and morals) to the people prior to any action, as opposed to a declaration of particular laws, per case, after a dispute has risen between (usually) two parties. Such an elaborate scheme of laws was quite a novel idea, and also, at least in part, probably a consequence of Moshe’s heeding his father-in-law's advice and departing from the role of a sole arbiter and judge of all cases and controversies. Now that other judges were in charge of running the legal system, they – and the people who were subject to their powers – were entitled to know (to quote Chief Justice Marshall from 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 (refusing to acknowledge God as the sole creator) or most heinous of crimes (murder), 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 to the non-lawyer readers of this blog. Still, even without legal training one cannot escape a sense of awe when reading these ancient laws: how efficiently they were written; how much wisdom they reflect; how relevant many of them still are today (or, put differently, how little has changed 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, clothes, and conjugal privileges. (Ex. 21:10)

But today I want to focus not on the laws that haven’t changed, but on those that have. In particular, I would like to demonstrate how two laws, well-established in their day, 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.

The talion appears as part two of a law with two possible consequences. (Think of Section 1 as the law, and small sections (a) and (b) as the consequences). (See Exodus 21, 22-25) The law, or Section 1, deals with the following incident: Two free men are fighting while one of them accidentally harms a pregnant women (who is not involved in the tussle) and causes her to give birth to one child or more. The first of two possible consequences here, or small section (1), is that both mother and child (or children) are fine. In that case, the sanction (civil punishment) for the violator is an undetermined amount of money damages to be sought by the woman’s husband (note: not by her) and determined by the magistrates.

The second possible consequence, small section (2) if you will, is far more severe. Here, some (unspecified) “disaster” has happened – either the woman was injured or died, or the children were injured or died – then, in that case, the amount of damages is no longer arbitrary; in that case, the payment would be exactly in the amount equal to that that has been lost:

“[22] When men fight, and they injure a pregnant woman, and her children have come out, and no other tragedy occurs, the penalty would be in the amount that the husband of that  woman would ask as determined by the court; [23] But if a disaster struck, 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, from the context of this specific remedy that there is no intention that the person who accidentally, unintentionally damaged – or even killed – a pregnant woman or her child would be executed, or would be permanently maimed in a barbaric manner. On the contrary, it is clear that all the text is trying to do here is to protect the right and bodily integrity of pregnant women who deserve a special protection of the law due to their (physically) precarious position. 

[This week alone, we heard of federal judges in this country who have yet to internalize this important lesson, denying a claim by a young mother who asked for her job back after being fired for breast pumping at the workplace; the young mother’s claim that she is entitled to a “reasonable accommodation” was denied by explaining that she was no longer pregnant and therefore not entitled to any protection of the laws. Other judges have recently denied the notion that pregnancy itself requires “reasonable accommodation” as it is a “disability”; and while I do not think that pregnant women are “disabled,” they definitely deserve a temporary protection of the laws as needing “reasonable accommodations,” even at the priced of being tagged, legally, as "temporary disabled."] 

In addition to pregnant women, the text also protects other fragile groups - such as slaves of both genders who are accidentally hurt as a result of two men fighting (an event as old as humanity itself – see the Cain and Abel story for the earliest documented incident). This is a fascinating issue, then as today – the protection, by regulation, of fragile groups of victims (minors, elderly, and pregnant women) suffering from violence caused by other members of the community; think of victims of a gang “drive by,” or a bar female patron who suffers from violence by two intoxicated guests. Most importantly, the biblical text provides here a well-measured response, determining, first and foremost, that such injuries should be compensated, even if accidental; and second, and no less importantly, that such compensation should be comprehensive – for any injury they have suffered, for every bruise, cut, or lost limb, either to them or to the babies, they should receive a full compensation covering that very same amount.

Now to take this carefully-calculated civil compensation formula and turn it into the theoretical basis for criminally executing many an innocent victim, some cases in a racially-biased manner – and all that just because it “sounds good” (“The bible teaches us: ‘Eye for an Eye, Tooth for a Tooth.’ You, the jury, must give this man a taste of his own medicine: Send him to the death chamber!”) – such a misuse of the biblical text is simply beyond me.

II.The Laws of Kashrut 

Not too many are aware, but much of 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 its mother’s milk.” (Exodus 23:19).

This seemingly innocuous prohibition, which was prescribed – according to some of the more recent commentators – in a direct response to many a foreign 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, are ordered to refrain from doing such things.

How could that single verse spread into the powerful set of laws it is today?

Here is a quick thought exercise: We are not allowed to boil a young goat in its mother’s milk. There are two components here: the meat of the goat, and the milk of the mother. How can we be sure, while cooking the meat, that his mother’s milk – or traces thereof – cannot be found in the milk, or milk products, in which we cook that meat? The safe answer would be to eliminate any milk, or milk-based products, from the cooking process of the goat’s meat. But looking back at that meat, how can we be sure that that same meat – or traces thereof – are not to be found in other processed meat products? While the chances are not high, in order to be safe we better separate all meat-based products from any milk-based products.

Once we have done that, we have to also make sure that those two groups of products will never be consumed in the same set of dishes; therefore, two sets of dishes are warranted, one for each group (meat and milk products). Thus, 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, either “meat,” “milk,” or “parve” (which is neither).  And every single meal we eat is carefully designed so it will not step over the bounds of this single verse, appearing in a text written several thousands of years ago. Fascinating.

Shabbat Shalom,

Doron