This week’s parashah takes place in the midst of the dramatic ceremony of the Covenant at Sinai. Moshe has “introduced” the Israelites to God and they have heard the principle stipulations of the Covenant in the form of the Ten Commandments. They have accepted the terms and now stand poised to ratify the covenantal document, to sign on the dotted line.
But now comes the small print: the actual terms and conditions they are to keep. This set of laws, called the Covenantal Code, sets out the basis for a society living under a judicial system.
Rav Elchanan Samet has observed that these laws are not presented at random, but are set out in a particular order: First come cases of injury to persons, then injury to animals, followed by damage to produce growing in a field, and finally damage to, or theft of, inanimate objects. While a more legalistic ordering might list the laws in accordance with the punishments or compensations incurred, this particular order represents the values that the Torah wishes to emphasize — people, animals, crops, and lastly objects:
The moral (and not legal) order of this parasha expresses a principle: a person’s life, his physical wellbeing and his possessions—from the most important among them down to the least important—are worthy of protection from harm caused by the actions and carelessness of others.
The holy and the profane
But there is yet another way in which the Covenantal Code conveys values essential to Jewish life. At the end of last week’s parashah we find instructions for building an altar:
“The Eternal said to Moshe: Thus shall you say to Bnei Yisrael: You have seen that I have talked with you from heaven. You shall not make with Me gods of silver, neither shall you make for yourselves gods of gold. An altar of earth shall you make to Me, and you shall sacrifice on it your burnt offerings, and your peace offerings, your sheep, and your oxen, in all places where I cause My Name to be pronounced, I will come to you and I will bless you.” (Shemot 20:19-23).
Our parashah picks up right after this with: “These are the laws (mishpatim) which you are to set before Bnei Yisrael.” There is no sharp dividing line between “religious” laws and civil laws. This is not a bug; it’s a feature!
In fact, Rav Yoel bin Nun makes a good case that the laws given in Parashat Mishpatim are expansions and derivatives of the Ten Commandments. These laws include both casuistic law (conditional or case laws) and absolute ordinances:
The fundamental difference between ‘the ordinances that you shall set before them’—that is, before the judges—and the absolute ordinances, which draw from the wording of the Ten Commandments, lies in the situations in which God’s judgment involves direct intervention.
These situations are those cases that will never reach a human court. Strangers, widows, orphans, and poor people in general do not have the strength, money, and help necessary to reach the judicial system, and therefore their cry (like that of Sedom) rises up before “the judge of all the earth” (Bereishit 18:21-25).
Thus, civil laws hold not only the common folk responsible for their actions; the civil authorities too are held accountable to see justice done, even beyond what the courts can do of themselves. Societal justice is a religious matter.
A confusion of names
But it isn’t only that different types of laws are included here — religious and secular, conditional and absolute. There’s also something very odd about the way the names of God come up in presenting the laws. We are told at the outset that the speaker is the Eternal, the four-letter name of God Y-H-V-H. And yet, throughout the legal code, the more generic name of God, Elokim, is used in third person. What’s more, the same word (elohim) is also used to refer to human judges. What’s going on here?
In a fascinating shiur, “For Judgment Belongs to God,” Rav Gad Eldad notes that these odd textual quirks are not coincidental. Take, for example, the case of the unintentional murderer. The text reads: “But if he did not scheme [to kill someone], rather God (Elokim) allowed it to happen, then I shall appoint a place for you to which he shall flee.”
Why this strange shift from third person “he did not scheme” to second person “I shall appoint a place for you“? Who is being addressed here? R’ Eldad concludes that this — and similar passages that employ the same shift in pronoun — are addressed to “the figure(s) possessing the authority to pass judgement and to punish”, ie. the judges, elohim: These judges are obligated to insure that the person who killed accidentally is conducted to safety, because Elokim allowed the accident to happen.
But if God is the one giving these instructions, why does he refer to Himself — Elokim — in the third person? Rav Eldad presents an intriguing answer:
God is manifest in two different garbs. He is the Authority Who sets down the laws of nature, giving all the elements of Creation their power. At the same time, He knows that the laws of nature operate regardless of the moral or educational context, and therefore He Himself must “keep an eye” on these laws, as it were, and deal with “mutations,” when necessary. God, as it were, declares the deficient character of reality which He Himself created.
The world itself is not just, or even particularly interested in human morals. And yet the Eternal is on the side of justice and will judge societies by how they treat those who either fall between the cracks (widows and orphans) or who have become embroiled in difficult situations not of their own doing, such as the unintentional manslaughterer. The world isn’t fair, so human authorities are held responsible with countering this unfairness as far as they are able.
At the same time, one who is actually guilty may not hide behind wealth or piety to escape justice. “If a man schemed against his neighbor to kill him with treachery, from my very altar you shall take him that he die.” The judges must step in and work for justice, even when the murderer himself seeks the protection of the Eternal.
In other words, where God’s justice fails, human justice must step in—karma by other means! This then is one reason the word “elohim” is used both for God and for human judges, sometimes with the two different meanings in the same verse.
Anyone who remembers the plagues of Egypt and the exodus from Egypt must be terrified by the situations in which the judicial system is incapable of saving the truly weak. When their cries rise up before God, the most awful judgment will be revealed, in the form of calamities that will befall those who could have saved them, but failed to do so.“You shall not afflict any widow or fatherless child.
If you afflict them in any way, for if they cry at all to Me, I will surely hear their cry;
My wrath shall wax hot, and I will kill you with the sword;
and your wives shall be widows, and your children fatherless.”