Michael Fleisher, February 9, 2002

The portion for this week is Mishpatim. Mishpatim means rules or ordinances. In the book of Exodus the Israelites have just been saved at the Sea of Reeds and have just been given the 10 Commandments. The text in this portion covers such specifics as what to do with an ox that gores people or a slave that refused to be redeemed, how to provide restitution for destroyed property or lost virginity. Some of the Mishpatim seem legalistically precise and unequivocal, while others would be overturned by modern courts as overly broad. Some are clear, simple statements of offenses that require immediate Capital punishment. Some call for compassion, others for swift vengeance.

I would like to focus on two groups of verses.
Exodus 21:22-25 
When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman's husband may extract from him, the payment shall be based on reckoning. But if other damage ensues, the penalty shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.
Exodus 21:12
He who fatally strikes a man shall be put to death
Exodus 21:14
When a man schemes against another and kills him treacherously, you shall take him from My very altar to be put to death.

Exodus 21:16
He who kidnaps a man-whether he has sold him or is still holding him-shall be put to death.
Exodus 21:15
He who strikes his father or his mother shall be put to death
And one that have often quoted to my adolescent children 
Exodus 21:17
He who insults his father or mother shall be put to death.

Contrast these to: 
Exodus 22:20-23 
You shall not wrong a stranger or oppress him, for you were strangers in the land of Egypt. You shall not ill-treat any widow or orphan. If you do mistreat them, I will heed their outcry as soon as they cry out to Me, and My anger shall blaze forth and I will put you to the sword, and your wives shall become widows and your children orphans.
Exodus 23:9 
You shall not oppress a stranger, for you know the feelings of the stranger, having yourselves been strangers in the land of Egypt..

Previous legal codes in the area, such as the Code of Hammurabi, had included widows and orphans as deserving special protection. A society is judged by how it treats it's most vulnerable, and the Hebrew for "not ill-treat" is stated most emphatically as if to say "in no way whatsoever". This sentiment, that strangers must be treated fairly was a newly stated in the Torah. Ger means stranger or resident alien. The Torah mentions the Ger, 33 times and always to demand equal treatment. As Plaut says" The Ger was to be given every consideration, and care taken that not only his rights but his feelings be safeguarded. He must never be shamed." (Recall the hospitality tradition that was rewarded by God to Abraham and lives on in every Jewish mother). Plaut comments further that compassion is part of God's nature and therefore must be carefully nurtured by His children in their own lives. This sentiment is echoed in numerous other verses in Torah.

Because we were strangers, and because we know the feelings. We have empathy. The Israelites had empathy because they had just been through the persecution of being the Ger, the stranger, the resident alien, The Other. Sadly this was not the end of our empathy building experiences. Through countless humiliations, through expulsions, pogroms, and finally the Shoah we know all too well the oppression to which strangers can be subjected. Never again!

It does not say here, as it does in other places, that we should do this based on " I am the Lord". If empathy is not sufficient motivation, the harsh reality consequence might be. We are threatened with a fitting consequence, what goes around comes around; God will hear their cries and our families will become widows and orphans. There are many rules and commands in this portion but this is the only one that has a dire threat connected with failure to live up to the Law. This is an ethical mandate that comes from God, but for American Jews who are uncertain about God, or secular Israelis there is still good reason to behave this way. And we do.

Jews have been quick to respond to the outrages in the Balkans and Rwanda, to racial discrimination and racial profiling and more recently to attacks on Mosques and Moslems. Never again to anyone!

These concerns for social justice resonate with us as Reform Jews in the prophetic tradition. But there is another aspect to Justice, the protection of the individual against harm and the just punishment of those who are dangerous. Both Israelite and Canaanite, both Israeli and Palestinian, should be treated equally in cases where injury occurs. This is the spirit of not oppressing a minority, equal justice under law.

Exodus 21:22-25, the "eye for an eye" passage defines a way of reckoning the punishment of those who cause injury. The following verses appear to relate to a specific situation, that is two men fighting and injuring a pregnant woman, causing a miscarriage. This obviously is a very rare situation and one can hardly imagine this occurring even in ancient times. (People were probably gored by oxen far more frequently). For this reason, this passage has been widely interpreted as a general rule for punishment for violent acts.

Plaut states that this is one of the most misinterpreted verses in Torah. Christian detractors, eager to make the case for their "more compassionate" religion saw these lines as cruel, bloodthirsty and "primitive". This literal, legally sanctioned, physical retribution or "talion" was never carried out in any stories in the Bible. The context here speaks of unintentional consequences and the Rabbis have interpreted this to refer to restitution for the value of a life or limb in much the same way that modern insurance policies set a monetary value on loss of function. This section focuses on making the aggrieved whole. The other situations described in this immediate section deal with restitution and compensation plans that are rather generous, such as slaves going free for an injury, or dividing the price of an ox. The Rabbis knew that an eye for an eye leaves everyone blind.

Even though many transgressions require certain punishment by death, testimony was made so difficult in capital cases that no one could be convicted and sentenced to die. One execution in seventy years was considered a "bloody court". Modern Israel has no death penalty except for genocide in time of war. Consideration for the "enemy" is encouraged in the verses chanted by the Cantor regarding returning and unburdening your enemy's ass. Innocents are to be protected.
All of this is not meant to imply that retaliation is never allowed. There certainly are many passages of Torah that permit and even encourage all out war, preemptory self- defense, and retribution. (Too many, in fact, to list here.) The ethical response to violence has always been very difficult to define. In practical terms we must do something. And we have.


As the Olympics are being held one cannot help but be reminded of those Olympics in Munich almost thirty years ago. The impact on millions watching the massacre live on television was horrifying and galvanizing for us in much the same way as last September's attacks were for a new generation. The Israelis responded to the attacks by sending out several assassination teams to revenge the deaths. Members and supporters of the terrorist group Black September were target by the Mossad. The leader of the successful team is still only known by his code name, Avner. These events are documented in the book by George Jonas, Vengeance and portrayed in the 1986 film Sword of Gideon.

A primary principle was for the team to act with zero collateral risk. Mossad did not want the team to act with the same recklessness and disregard of innocents as the terrorists they were hunting. "If the team killed only three terrorists, the mission is a success, although disappointing. However, if the unit killed all eleven on the list but also killed one innocent, the mission would be a failure."

In a case of mistaken identity, the first team shot the wrong man and an innocent waiter died in the arms of his pregnant wife. Avner's team was successful but he began to develop qualms about the project. In the film, (which may be fictionalized on this point, the book does not emphasize his ethical concerns) Avner visits the hospital to confirm the death of a target only to see his grieving wife and daughter. How can he now say that he has not harmed an innocent? Whether or not the real Avner reached this ethical crisis, the movie makes a powerful point. The real team suffered loses when targeted in turn and several members were killed.

Several months ago allegations were made by a long hidden survivor of one of these assassination attempts, that Avner was in fact Ehud Barak. Whether he was Avner or not is, in some ways, beside the point. This belief is marketable and cannot be effectively refuted. I realize that "the first casualty of war is the Truth" and propaganda is not to be believed, unless of course it is your own.

But what does all this have to do with the ethics in Mishpatim?

The Ger is always at risk of becoming the villianized Other. They are not like us, they are capable of horrendous acts. If one does this, they are all capable of this behavior. Any group that condones this is a danger and the leaders are to blame. We "otherize" you; you "otherize" us. We target you; you target us. Eye for an eye and everyone is blind.

Other than condemning a cycle of violence what insights can this portion offer us?
Two Jewish philosophers have given some direction in terms of translating these principles of not oppressing the stranger into specific behaviors, difficult but possible.

Martin Buber starts with mutuality of the individual encounter between people. Relationships that show respect for the other as a fully worthwhile individual are contrasted with those where the other is an object to be manipulated or used. This I-Thou / I-It dichotomy is so familiar that we lose sight of its power. The discipline that is required to maintain an I-Thou stance is often underestimated. Working to develop and further policies that institutionalize empathy and fair treatment is even more difficult when the Ger has hurt or threatened you. But this is what we must do.

Emmanuel Levinas extends these views of Buber while speaking in a totally Jewish context. The empathy he sees in this response to the stranger starts not with the recognition that we can be hurt, but that we can hurt others. Much of ethical behavior is based on the sense of vulnerability and how to protect oneself by setting up universal standards that we would want all to follow. For Levinas the facing of another in a fully moral way requires that (and I quote my friend Roger Gilman here) "I must think of your anxiety as taking precedence over my anxiety. It means listening with full attention- not impatiently calculating some profound psychoanalytic dismissal of your concern. Morality begins in patience (listening) not in processing (analysis). To be patient means (and here I quote Levinas) 'to be given over to a future which belongs to the other'- 'a liturgy of profitless investment'. The mutuality of dialogue will come in due course but it will be effectual only if a genuine trust comes first- comes in glance of eyes face to face. Real symmetry of relationship can only follow this asymmetry of response." As Jews we are required to go first in these trust- building activities. If this sounds like therapy it's because it is.

Exodus 23:2 You shall neither side with the mighty to do wrong.
This has been interpreted by a tradition represented by Rashi to mean "Do not follow a majority blindly if your conscience demands otherwise." There are more and more reservists individually refusing to serve in the occupied territories, because they see themselves as oppressing the stranger. Jews are united as a people by a Covenant addressed only to individuals. As Levinas suggests, "Within this Covenant each person 
finds himself responsible for everyone else; each act of the Covenant expresses more than six hundred thousand personal acts of responsibility" Why more than six hundred thousand? Because "this was the number of Israelites standing at the foot of Sinai."

To summarize this portion's lessons while I stand on one foot:
"What goes around comes around" is true for both violence and compassion; a Jew has to "go first" to relate differently, it is our commandment; and it is up to each of us as individuals to begin the healing.

We all have an opportunity to demonstrate this personal act of responsibility to not oppress the stranger, the other, in the room with us today. In our discussion today as we approach this very difficult topic we can follow Levinas, Buber and Mishpatim in the way that we relate to the "other" in our dialogue. Let us conduct our conversations in a mutually respectful way, in a way that befits Shabbat and befits us as Jews. Let us bring peace to our house, to our community and to our world. And let us say, Amen.

D’Var Torah, February 12, 1999 Mishpatim, Ex: 21:1 - 24:18
Chanted: Ex: 21:22 – 32 (by Frances Peshkin)
Steven Jordan

The entire portion for this week consists of the rules for life that Moses passed on to us. It begins on page 566 of Plaut’s Torah Commentary - Exodus 21, and it runs through page 592. Here an enormous range of rules is laid out, from fundamental principles, to the most mundane items. Frances chose a very representative selection to chant.

To me, this week’s portion is unsettling at first reading, yet it is a majestic foundation for profound philosophy and theology. There are two aspects of the portion that trouble me:

• First, it is unsettling, because it seems jammed with harsh and cruel punishment. What comes around really goes around.
• Second problem: it is laced with trivia. What should we do with carcass of a gored ox? Where are our priorities? Why does the Bible dwell on bovine ethics?

Let’s concentrate on what Frances read (pages 568- 569, - verses 22 - 32.)

This portion is laced with harsh, cruel, and discriminatory punishment. That is the plain meaning, the Peshat. Biblical Judaism is not consistent, and there are periodic expressions of heartless inflexibility. On the other hand, in Rabbinic Judaism we may have no doubt - we must put this portion in the context of the whole Torah; it is a story of a patient God and a whining and errant people. Many chapters tell us how to set up cities of refuge, how careful we must be before we act on testimony, how we must protect the weak and the stranger. Over and over, the Rabbis have told us that the Torah and Judaism tells us not to be vindictive; and that vengeance is a path of religious peril. Our prophets have even often reminded God to follow the path of mercy. God reserves fierce punishment for situations that threaten the future of Israel as His people.

This portion is also crammed with trivia and technicalities. Look at the ox, page 569. The compensation or punishment is different for goring indentured servants, for goring children, for goring slaves, for goring another ox. Mohammad called us “The People of the Book.” Is this what we want for our Book? for our fundamental guide to life - a commandment about what to do with an aggressive ox and everything it affects?

Let us sharpen our focus on the verses for tonight, and see what our Rabbis said. Rabbinic Judaism develops an impressive theory of ox liability. Talmud, Seder Nezikin [Torts], Tractate Baba Kamma [The First Gate], goes through variations on the theme of the ox; it reads like debates over how many angels can dance on the head of a pin. There is the innocent case, versus the muad - the ox that has shown a tendency to gore. How much tendency? Precisely, an ox that has gored for three days, and the owner has been warned. Since an ox can be a muad, then a person can be muad - a proven danger. Be careful - an established danger has twice the monetary liability. The Talmud says that there are five ways to become an official muad: damage by goring, and also by collision, by biting, by lying down, and by kicking. These are official categories - the horn, the tooth, etc. Each of these categories of damages has as its source a quotation from the Torah.

That was just damages by ox. The next few lines of our portion introduce the dangers of a pit. “When a man opens a pit, or digs a pit and does not cover it, and an ox or an ass falls into it, the one responsible for the pit must make restitution; he shall pay the price to the owner, but shall keep the dead animal.” Just as the Rabbis established the rules and regs that came from the ox that gores, they developed a whole scheme of responsibility and consequences from the open pit. And some people complain about OSHA!

This is truly trivia. Interesting, perhaps, but why is it in the Torah? Why not in some neurotic judge’s footnote?

It is because this week’s portion shows us how to find the path of holiness and righteousness.

What do we need to be a holy people?

• A certainty that God tells us the way to live
• The knowledge of right
• The intention to do the mitzvot
• Action

It is not possible to write down every rule for every situation. This week’s portion demonstrates that, if we are to follow the mitzvot, we must keep them before our eyes every waking moment, in every realm of life. For example, not only must we honor our parents, but also we must be careful for those things entrusted to us. (Exodus 22:6 explains the damages that I owe you, if you entrust me with your car and then the car is stolen.) Furthermore, we must consider conflicting principles and mitigating circumstances. A slave must be freed after six years; but what if the slave wants to stay, and what about the slave’s family? The poor have special rights, and privileges. Should we give deference to a poor man in a dispute? No. The Torah uses a wide variety of examples to show us how to search for understanding.

How can we know what God wants from us? Knowledge is comprised of two extremes - our sages have called them Understanding and Wisdom. The Hebrew word for Understanding is “Binah,” from the root Beyn, meaning “between.” The brother of understanding is Wisdom, or “Chakhmah.” The first, “Binah,” is detailed analysis, and the second, “Chakhmah,” is a full synthesis. The Kabbala puts this pair, Understanding and Wisdom, holding hands, right behind the Crown of God.

Understanding: The core of understanding is making distinctions. The difference between right and wrong, the separation between the holy and the secular. Making distinctions is central to Creation - separation of light from darkness, the Tree of Knowledge of Good and Evil. This is how we define our roles in our families, our roles as friends, our roles in the workplace - defining the boundary between what is acceptable, and what is not. How should we treat each other? We only find out by confronting ever-new situations, and by making distinctions. This is the content of this week’s portion - drawing the line again and again, with more and more subtle distinctions. Life is complicated.

Think about the decisions you had to make this week.

Can we actually make a right decision, and take into account the subtleties of this process? Can we determine the right path? Yes we can. Let me quote one of our favorite passages. Deut. 30:11. It is not only about doing mitzvot, but also about understanding, about making distinctions.

Surely, this Instruction which I enjoin upon you this day is not too baffling for you, nor is it beyond reach. It is not in the heavens that you should say, “Who among us can go up to the heavens and get it for us and explain it to us that we may observe it?” Neither is it beyond the sea, that you should say, “Who among us can cross to the other side of the sea and get it for us and explain it, that we may observe it?” No, the Word is very close to you, in your mouth and in your heart, to observe it.”

In our own lives we create our own case law, drawing distinctions, our own personal Talmud that starts with one ox goring another. We can find our path of righteousness among the thousands of routes. Perhaps the Lord will be our Shepherd, and lead the way. Our Rabbi has taught us that sin is missing the mark, straying from the path.

Who has the obligation to follow the mitzvot? Whoever can understand. In Deut. 1:39, children who do not yet know good from bad, bear no responsibility. They shall enter the Promised Land.

Wisdom: What of undifferentiated wisdom, of Chakhmah, the other pole from Binah? We must be patient. There is a genuine temptation to rush to empty platitudes that sound like wisdom. There is no wisdom without knowing how to make the right decision, sorting out thousands of slightly different situations. We were so foolish as college students, when we put on the disguise of premature wisdom. Learn to say “hubris” and we were ready for the humanities courses.

Understanding is pointless without wisdom. Of course. As we make our decisions and draw distinctions, we should gain wisdom - what our priorities are, how we balance conflicting principles, where things lead.

Perhaps both the glory and the Devil are in the details. Nevertheless, I love that “Aha experience” when the details fall into place, when I know what to do, and a bit of wisdom emerges from understanding.

That is what this week’s portion tells me. God will show us the way if we study and listen. We must make our decisions carefully. In addition, we must remember what is really important, and how things fit together, for that is Wisdom.

This coming week, when we take our paths, and make our decisions, may God help us to understand the many implications of our actions, and may God help us to step back and grow in Wisdom.