D’Var Torah, February 12, 1999
Mishpatim, Ex: 21:1 - 24:18

Chanted: Ex: 21:22 – 32 (by Frances Peshkin)
Steven Jordan

“Eye for eye, tooth for tooth, burn for burn.” The ox that gores.

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.