The Law of the Lord

This week’s parashah is Mishpatim.  Mishpatim is the Hebrew for ‘laws’ and most of the sidra is made up of a diverse and wide-ranging collection of legal injunctions.

Judaism is famously preoccupied with law and the pursuit of justice.  At the beginning of last week’s sidra, Moses’ father-in-law, Jethro, visits the Israelite camp in the wilderness.  Moses would spend the whole day – “From morning to evening” – sitting as a judge for the people who stood around him, waiting their turn.  Jethro is astonished and asks why Moses is taking the entire burden of judgement on himself, alone and unaided:  “What you are doing is not good.  You will surely wear yourself out, both you and the people with you …”  Moses eventually listens to his father-in-law and creates a new system of lower courts.  Moses explained to Jethro that originally he had sat alone “because the people come to me to inquire of God.  When they have a dispute they come to me and I decide between one person and another, and I make known to them what God has instructed.”

This very exalted understanding of law was unique in the ancient world where the law codes all regarded law as a purely human creation.  Divine inspiration explains why Biblical Law is so wide-ranging, taking in religious and ethical life and personal responses that are beyond the reach of normative law enforcement.  Law is not a secular phenomenon:  it is rooted in and touched by the full scope of our relation with God.  Cases that would normally be confined to a small claims court – someone digs a pit in the street and an animal falls into it – now also involves larger religious concerns such as love of neighbour, responsibility for animals and atonement for wrongdoing.  When students engage with the legal discussions that are involved in such cases, they develop a sense of justice and a passion for right acting, learning to value truth, equitable behaviour and the pursuit of peace and reconciliation.

When law is grounded in the will of God, it is uttered in the imperative and addressed to each and everyone of us in the second person singular.  Such law can be a powerful instrument for social and ethical transformation.  A frequently cited example of this from the parashah is Exodus 22:21:  “You shall neither wrong nor oppress a stranger who lives among you, for you were strangers in the land of Egypt.  You must not abuse any widow or orphan.”  Historical suffering is transmuted at a stroke into moral obligation in a manner that is without parallel in the ancient world and would not be possible without a transcendent source of inspiration.

A second striking example is provided by the material in Exodus 22:25-26.  The first verse forbids us to take interest on loans made to people in need, and then in verse 26 we find the following:  “If you take your neighbour’s cloak as a pledge, you shall restore it before the sun goes down;  for it may be your neighbour’s only clothing to use as a cover;  in what else should a person sleep?  And if your neighbour cries out to me, I will listen, for I indeed am compassionate.”  It would be surprising to find this in a secular law code as, in effect, it transcends legal logic in the interest of a vision of humanity that is rarely if ever to be found in the body politic.

There are also Biblical laws that contemporary people find very difficult and an example in our parashah is that the Torah did not abrogate the institution of slavery, as we might have expected it to do in the aftermath of the Exodus narrative.

The case for the defence is that the cruelties of Egypt did not remain in place.  Physical violation was effectively ruled out and the slave rested on the Sabbath as we saw in the Ten Commandments.  Additionally, the Hebrew slave would be freed after six years and Deuteronomy 23:15 makes clear that slaves who ran away from their masters would be offered sanctuary and not forced to return.  (This was progress:  the Hammurabi Code inflicts the death penalty on anyone found sheltering a runaway slave.)  Most strikingly, Leviticus 25:39-42 does effectively abrogate slavery for the people of Israel and treated Hebrew ‘slaves’ as hired labourers.  The reason provided is that the people of Israel are the servants of God who freed them from the land of Egypt and they must not be enslaved again, or treated harshly as a form of hard labour.

The problem is that this did not apply to pagans, who might still legally be worked ‘with rigour’.  Whether this actually ever happened is unknown and there are reports of Talmudic rabbis who treated slaves with great kindness.

When Moses Maimonides came to address the problem in the twelfth century, he effectively ruled out any form of unduly harsh labour regime and insisted that all relationships must be governed by justice and compassion.  While the law obviously remained, Maimonides argued that to act on it would compromise religious, ethical and moral obligations that were fundamental and sacrosanct.

I would suggest that Maimonides’ decision offers a hugely important insight into the workings of religious law, in so far as it establishes the principle of ethical precedence:  if any given law clearly compromises the ethical foundations of the faith, then the law is rendered inactive and placed in abeyance.  Even if there is no clear compromise, the ethical principles must always be present in deciding what we are to do:  legal sanction by itself is insufficient.  This procedure radically distinguishes religious and secular understandings of law and is crucially important.

We begin to understand what the ancient rabbis meant when they said that Jerusalem was destroyed because the judges insisted on not going beyond the letter of the law, or when they advised that certain laws taught us a great deal but were never acted upon.  Law is not legalism and must always be understood in the light of the entire tradition of which it is a part:  only then will we see that its ways are truly ways of pleansantness and its paths are pathways to peace.

Jonathan Gorsky

12.2.2021