Mishpatim – Laws: Yes, They Are Still Applicable!


Mishpatim follows the receipt of the Ten Commandments.  By the word “follows” I means that in Torah, this Parasha comes after Yitro, and not necessarily a chronological relationship.  It stands for reason that explanations how to implement the top-level Ten Words in daily life would follow.  The explanations include the reasoning AND the consequences of abiding (or disobeying) the laws so people will follow them. 

Artscroll’s translation adds titles which do not appear in the original Hebrew text that describe the specific subject matter.  Jewish Bondsmen; A “Sale” of a Daughter; Murder and Manslaughter; Killing a Slave; Penalty for Bodily Injury; Death Caused by an Animal; A pit; An Animal Damaging Property; Stealing Livestock; All these are the titles that appear in chapter 21 only. 

The list continues: Self Defense (I discuss this subject in a separate article under Jewish Thought); Payment for Theft; Damages Caused by Livestock; Laws of Custodians; A Borrower; Seduction; Sensitivity to the Helpless and Abandoned; Extending Free Loans; Integrity of the Judicial Process; and Fair Dispensation of Justice.

In addition, we have the Shabbat of the Land and the Shabbat of the Week; The Three Pilgrimage Festivals; The Promise to Conquest of the Land; We Will Do and We Will Obey; and Prophecy at the Mountain conclude the list of titles.  So, where should we begin? What to focus on?

Artscroll image for Mishpatim

Na-aseh V’Nishmah – We Shall Do and We Shall Hear

Let’s start from the very end of the list, with verse Exodus 24:7:

Then he took the Book of the Covenant and read it aloud for the people to hear; They said, “All that Adonai has said We will do and hear [Na-aseh V’Nishmah]!”

וַיִּקַּח֙ סֵ֣פֶר הַבְּרִ֔ית וַיִּקְרָ֖א בְּאׇזְנֵ֣י הָעָ֑ם וַיֹּ֣אמְר֔וּ כֹּ֛ל אֲשֶׁר דִּבֶּ֥ר יְהֹוָ֖ה נַעֲשֶׂ֥ה וְנִשְׁמָֽע׃

What is the Book of Covenant?  Presumably it contains some of the history of the People and the relationship between our ancestors and God.  It might also list laws and the mutual commitments between God and the People (Parashat Miashpatim mentions some).  The People heard all that in addition to the Ten Commandments. The order of first Do and then Hear does not make sense, at least logically.  The words “We will hear”, imply that they had not yet heard any of it.  Not the Ten Commandments, nor the detailed laws that followed as set out in our Parasha. 

A heretic expressed the illogical issue at hand to Rava (Bavli, Shabbat Tractate 88a).  “You’re an impulsive nation, who accorded precedence to your mouths over your ears.   You still bear your impulsiveness, as you act without thinking.  You should listen first.  Then, if you are capable of fulfilling the commands, accept them.  And if not, do not accept them”.  Indeed, our Western Oriented minds work this way: we first need to know, understand, and then we can act.

Rashi explains this, using the hermeneutic tool “There is no chronological order in Torah” in the Thirty-Two Rules Baraita.  He asserts that Moshe read the rules in Mishpatim to the People before the event on Mount Sinai.  He explained (based on Midrash and Talmud) that the People accepted the Covenant with God at Sinai with great enthusiasm.  The People of Israel expressed their deep faith and commitment to the Covenant with God.  No matter what God is going to ask of them they will do, even before hearing what it would be.

However, other Jewish sages, Ibn Ezra (1089-1164), Rashbam (1085-1174) and Ramban (Nachmanides, 1194-1270) disagree with this approach.  They read the chapters in chronological sequence.  They interpret the Nishma as harken, heed, obey.   In Hebrew, the phrase “Sh’mah B’Kol” (literally ‘hear to the voice’) means to obey, follow the instruction that one heard.  Using this interpretation, the Na-aseh V’Nishmah emphasizes the DOING by harkening to the commandments.

The approach ‘one first needs to know, and then act’ works when you buy a car or a cellphone.   However, when it comes to more existential, fundamental decisions it fails.  The only way to truly comprehend what marriage entails, is through living it.  Learning about leadership is not enough: one gains the knowledge what it takes to be a leader only by leading.  One must try a profession, a path, for an extended period, for one to know that it’s the right one.

The meaning of Na-aseh V’Nishmah would be than, “We will do, and through extended practice, we will understand.”  The only way to understand Judaism is through doing it, living a Jewish life by following values and commandments.

Rabbi Jonathan Sacks of Blessed Memory examines how the People of Israel ratify the Covenant (Covenant and Conversation 2016).  The first time the People commit to follow the words of HaShem is before they receive the Ten Commandments.  They just heard the preamble of the Covenant.   Their response is (Exodus 19:8):

All the people answered together, saying: “All that Adonai said we shall do!”

וַיַּעֲנ֨וּ כׇל הָעָ֤ם יַחְדָּו֙ וַיֹּ֣אמְר֔וּ כֹּ֛ל אֲשֶׁר דִּבֶּ֥ר יְהֹוָ֖ה נַעֲשֶׂ֑ה

Then, Moshe tells them the Ten Commandments, and the laws in Parashat Mishpatim, to which the People’s respond (Exodus 24:3):

All the People answered in unison, saying, “All the words [things] that Adonai said we shall do!”

וַיַּ֨עַן כׇּל הָעָ֜ם ק֤וֹל אֶחָד֙ וַיֹּ֣אמְר֔וּ כׇּל הַדְּבָרִ֛ים אֲשֶׁר דִּבֶּ֥ר יְהֹוָ֖ה נַעֲשֶֽׂה׃

After that, Moshe takes the time to write down all that he told them.  A ceremony that includes building an altar and offering sacrifices takes place.  Moshe concludes the ceremony by reading aloud the Book of the Covenant, the one that he just finished writing.   Then, again, the People respond (Exodus 24:7):

He took the Book of the Covenant and read it aloud to the People.  They said, “All that Adonai said – Na-aseh V’Nishmah! We will do and hear”

וַיִּקַּח֙ סֵ֣פֶר הַבְּרִ֔ית וַיִּקְרָ֖א בְּאׇזְנֵ֣י הָעָ֑ם וַיֹּ֣אמְר֔וּ כֹּ֛ל אֲשֶׁר דִּבֶּ֥ר יְהֹוָ֖ה נַעֲשֶׂ֥ה וְנִשְׁמָֽע׃

There is a seemingly small, but very significant, difference between the last one and the former two: No unanimity!!

When it is about the doing, Judaism is a community of doing thing unanimously, in unison.  Within the community, we seek consensus in the way we practice, even though there are many different ways to it.  The Torah contains laws and narratives, history and mystic visions, rituals and prayers.  The way these are interpreted and practiced create the norms how to act as the members of a Jewish community.  However, when it comes to spirituality there are much less norms how to think and feel as Jews.  Some find it in nature, others in interpersonal emotion and love.  Studying Torah is another way to hear God’s voice, just as is joy, music and dancing (see King David…).

In Rabbi Sacks words, “We can find God on the heights and in the depths, in loneliness and togetherness, in love and fear, in gratitude and need, in dazzling light and in the midst of deep darkness. We can find God by seeking Him, but sometimes He finds us when we least expect it.  That is the difference between Na’aseh and Nishma.  We do the Godly deed “together”.  We respond to His commands “with one voice”.  But we hear God’s presence in many ways, for though God is One, we are all different, and we encounter Him each in our own way.”

An Eye for An Eye

Exodus 21:23-24:

And if there is misfortune, he will give a life [in exchange] for a life

Eye for eye, tooth for tooth, hand for hand, foot for foot.

וְאִם אָס֖וֹן יִהְיֶ֑ה וְנָתַתָּ֥ה נֶ֖פֶשׁ תַּ֥חַת נָֽפֶשׁ׃

עַ֚יִן תַּ֣חַת עַ֔יִן שֵׁ֖ן תַּ֣חַת שֵׁ֑ן יָ֚ד תַּ֣חַת יָ֔ד רֶ֖גֶל תַּ֥חַת רָֽגֶל׃

Some translations connect the first verse above to the previous law, which deals with persons that fight with each other.  As a result of their struggle, a pregnant woman gets hurt and miscarries her embryo.  The Catholic Douhay-Rheims Bible, provides a very clear translation: ‘But if her death ensue thereupon, he shall render life for life.’ 

Can we take these two verses and similar others literally?  Should the one that caused inadvertently the death of another person put to death? Or blinded in retaliation to impairing someone else’s eye?  The literal answer creates a major discomfort within us, and thankfully, this approach is not practiced today.  Nor it was literally implemented in the past.  Our sages worked around this issue and reinterpreted it in a humane way.  Learning how they did it can help us in finding our own way how to understand our Scriptures.    

Jesus used this verse as a trigger to his teaching for compassion and non-violence (Matthew 5:38-40): “You have heard that it was said, ‘Eye for eye, and tooth for tooth.’  But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also.  And if anyone wants to sue you and take your shirt, hand over your coat as well”.  His words show the intent, that actually instructs to act the opposite way than dictated by the words in Exodus.

Rashbi (Rabbi Shimon ben Yoḥai, 2nd century CE) wonders what ‘An eye for an eye’ really mean (Bava Kama 84a).  Must the one who caused the injury lose an actual eye, or does it refer to monetary restitution?  He raises a potential problem: there may be a case where a blind person blinded another.  Or one with a severed limb severed someone else’s limb.  In these cases, one cannot fulfill “an eye for an eye” literally, since the injuring person already lacks the eye (or limb).  Rashbi then refers to Leviticus 24:22, which means that the law shall be equal for all.  The only equal punishment to all would be a monetary restitution.

The school of Rabbi Yishmael (2nd century CE) uses another prooftext (Leviticus 24:19-20) that supports the monetary restitution. 

Any person that gives a maim within another person; what that person did, so shall be done to that person.

A fracture for fracture, an eye for an eye, a tooth for a tooth. The injury one gave to a person so shall be given to one.

וְאִ֕ישׁ כִּֽי יִתֵּ֥ן מ֖וּם בַּעֲמִית֑וֹ כַּאֲשֶׁ֣ר עָשָׂ֔ה כֵּ֖ן יֵעָ֥שֶׂה לּֽוֹ׃

שֶׁ֚בֶר תַּ֣חַת שֶׁ֔בֶר עַ֚יִן תַּ֣חַת עַ֔יִן שֵׁ֖ן תַּ֣חַת שֵׁ֑ן כַּאֲשֶׁ֨ר יִתֵּ֥ן מוּם֙ בָּֽאָדָ֔ם כֵּ֖ן יִנָּ֥תֶן בּֽוֹ׃

From the seemingly superfluous repetition of the second verse, they conclude that the verses refer to monetary restitution.  The one thing that is given, not done, is money.  In support of that thought, comes from the school of Rabbi Ḥiyya (3rd Century CE). They notice that Deuteronomy 19:21 adds to “life for life, eye for eye, tooth for tooth” Hand in Hand.  What is the compensation which is given from hand to hand? That is monetary restitution.

If that is not convincing enough, comes the school of Ḥizkiyya with another argument.  The Torah states: “A life for a life” (Exodus 21:23) and “An eye for an eye” (Exodus 21:24).  It doesn’t say: ‘an eye and a life for an eye’.  There could be situations when in the process of taking the offender’s eye out, that person may die.  That is unfair and not proportional punishment.

The Mishnah sets and elaborates the five categories of monetary restitution that must all be fulfilled (Bava Kamma 8:1).  One who injures another is liable to pay compensation for that injury due to five types of indemnity.  He must pay for damage, for pain, for medical costs, for loss of livelihood, and for humiliation.  

The Mishnah, Talmud and later sages set the arguments and the standards to evaluate these five types of indemnity.  It is important to emphasize that monetary restitution for a loss of life cannot be applied in a case of murder.  It applies only in a case of an accident or inadvertent killing.  

This principle is applicable even today in the western society (and elsewhere) judicial system.  It is a part of the laws of tort, and surely are followed in civil cases.  In our judicial system, there is also the criminal aspect, that may be considered as orthogonal to the civil case.  If the damage resulted during a crime, criminal laws apply, in addition to justice according to civil tort laws.

Comparing the Jewish Approach to “Eye for Eye” to Jesus’s teaching show similar intent.  In no way the Jewish law calls for retaliation and revenge.  Its purpose is only to restore the damage done.  The assessment of the damage takes the broadest perspective.  It includes in additional to actual damages and future losses, the emotional and intangible effects such as pain and shame. 

Jesus takes it one step further, of showing the compassion to the other, understanding the probable need of the other and supporting those in need.  And here, again, a metaphoric explanation can help us embrace his intent.  Rather than physically turn the other chick for the second slap, contain the insult.  Do not respond in anger to the one that offended you.  Responding in kind rather in retaliation may appease the offender instead of escalating the situation.

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