Rule of Law to Help Abide by Law in the Land

Parshat Mishpatim 

by Rabbi Avi Billet 

According to the Sefer HaChinukh, Parshat Mishpatim has 53 mitzvot in it. Other than in similarly mitzvah-laden parshas (such as Re’eh, Shoftim, Ki Tetze, and possibly Kedoshim) it is hard to find a more random list of mitzvoth that are not overall thematically connected.

Considering the opening verse of the parsha, “And these are the laws you shall place before them,” (21:1) one wonders when Moshe told these laws to the people, on the one hand, and when they were told to him, on the other.

Ibn Ezra is of the opinion that Moshe’s father-in-law’s visit, as recorded in last week’s portion, actually took place well after the giving of the Torah, and even several months later – after the Mishkan (tabernacle) was built. As proof, he notes that Moshe had a court system set up (albeit a primitive one of one man), that Moshe’s tent was “lifnei haElokim” (before God), which meant next to the Mishkan, and that Torah law was the arena in which Moshe was presiding.

So how are we to understand the placement of the laws of Parshat Mishpatim? The end of the parsha, chapter 24, describes Moshe going up the mountain to be there for forty days. The chronology is extremely difficult to grasp, especially since at the beginning of Parshat Mishpatim Moshe seems to not be on a mountain, and the verse does not even clarify who is speaking. Of course, we assume God is speaking to Moshe, but the fact is that the text is vague.

Beyond the references to Sinai, much of the laws here seem ill-placed for wilderness living. Meaning, when one studies the book of Devarim, we find that many of the laws concerning actual living in the land are addressed for the first time. Which makes sense, as Moshe is then speaking to the generation that is about to enter the Promised Land.

But here, we have laws that relate to owning servants or slaves (depending on how the word “eved” is translated and understood), murder, kidnapping, destroying someone else’s field with fire, bestiality, Shmittah (the Sabbatical year). None of these seem all that relevant in the wilderness (are the Israelites committing murder? Kidnapping?) Do they even own fields? Are they enslaving their brethren, or engaging in witchcraft? And of course, they don’t yet live in Israel, which comes with its own set of mitzvoth which are dependent on living in the land! And they certainly don’t live amongst non-Israelites (unless one considers the “Erev Rav” as a group of non-Jews with whom they contend).

There is a popular debate between Rashi and Ramban as to the order of the Torah’s narrative. Ramban is of the opinion that the Torah is presented chronologically, while Rashi is of the view that it is not – “Ein Mukdam U’m’uchar BaTorah.” For many years I preferred the view of Ramban, but as I study more and more, I am convinced that Rashi’s contention is correct. There are too many holes in Ramban’s approach and perspective that make it impossible to accept that the Torah as presented is chronological every time.

So what are to take from the random assignment of mitzvoth? Of the placement of the teachings of these laws?

I think there is grounds to suggest that even insofar as the Torah’s narrative goes there was room for free will to have the history of the Israelites be different from how it turned out. In other words, had they not made and worshiped the Golden Calf (in whatever form they worshiped), things would have turned out differently. If the spies had reported directly to Moshe in parshat Shlach, history would have been different as well.

Parshat Mishpatim demonstrates a healthy optimism that certain laws associated with living in a diverse cultural environment, in which, for example, the Torah’s law is the rule of law, but Jew and non-Jew alike accept the Israelite authority in the living of the land, was not too far away in the immediate future. They truly thought they’d be in the land soon, and needed to live with each other, knowing property law, and with whichever non-Israelites might remain in the land, who needed to be contended with in a societal manner, under the rule of law.

We don’t expect the Torah-community of the Jewish people to be thieves, murderers, etc., but we recognize the possibility that people are flawed and can commit terrible crimes, or have normal monetary disputes which need to be adjudicated.

Just before writing this thought, I heard the news of the murder of Itamar ben Gal HY"D in Israel, and saw the security video of the cowardly, senseless attack. While the non-Jews who accept the authority of the State of Israel’s laws are welcome to live there, within the law there must be a way to eradicate the cancer of terrorism that plagues the minds of those who will randomly kill a lone figure standing innocently at a bus stop. Too many widows, widowers, orphans, and grieving parents. If there isn’t enough deterrence, which is what the Torah law is supposed to create, then the ordered society the Torah aims to create can never be fully actualized.