Commentary on Mishpatim

Far be it from me to describe myself as a Man of Distinction, but I do cast myself as a man of distinctions.  Don’t look to me for discussions of theology or philosophy.  I look for midrashic nuances, the implications of this translation vs. that one, the study of characters rather than the study of character, or the why’s (w-h-y-s) of a given sedrah rather than the wise (w-i-s-e) message that others may extract from it.  Why is this stuff here, why was it included in the Torah, is the translation accurate —  these hit my buttons  more  than any spiritual message that other darshanim may help us glean from it.

Knowing this about myself, it was impetuous for me to volunteer to discuss Mishpatim without looking at it first, and without making the distinction between parshiot that continue the narrative flow of Torah,, and parshiot that are legalistic, in this case the interpolation of law codes into Exodus that provide us with a preview of the joys of Leviticus to come.  But, having committed myself to discuss Mishpatim, I began after the fact looking for distinctions and two totally coincidental events put me on the course I’ll start with – first, the arrival in my mailbox (snail mail, not email) of my copy of the new Women’s Torah Commentary and the arrival of the reminder from Beth Emet that this weekend marks my father’s fifty-first yahrtzeit. 

My father was a lawyer, so it seems appropriate to mark this occasion by discussing a chapter named Laws.  The commentators tell us the legal codes set forth in this portion have their parallels in the Code of Hammurabi and other Near Eastern documents, but the unique contribution of the Hebrews was to add dimensions of cultic instruction and moral exhortation to their core legal document.  We are also reminded that, in the prior two parshiot, we were given the core of the core, the Ten Commandments, and this section provides  the fleshing out of the basic principles to show how they will apply in practice. Property rights, treatment of slaves, restitution for damage – covenants between people and their neighbors as well as between Israelites and their God.  In fact, this chapter is referred to, perhaps anachronistically, as Sefer HaBrit.  ArtScroll and old JPS translate this as you or I would, as the Book of the Covenant; new JPS avoids the anachronism by referring to the record of the Covenant.   The interpolation also prepares us for the coming of Mishnah, Gemorah, and the Responsa literature – the unique Jewish skill set that lets us  create an entire kashrut industry on Thou shalt not seethe a kid in its mother’s milk.

In contemplating the Women’s Torah Commentary, my first thought was to make distinctions between this brand-new, Reform, feminist volume and the Orthodox ArtScroll commentary and the presumably more middle-of-the-road thinking of the Conservative Etz Hayim.  Frankly, this direction didn’t prove very fruitful – even on such feminist issues as the treatment of female slaves, the accidentally induced miscarriage, or the value of virginity, the bottom line tended to be the same, although the Women’s commentary raises issues that are just not on the radar screen in ArtScroll, Etz Hayim, Hertz or Plaut. 

For example, at the end of the parasha, when Moses and an entourage go back to the mountain, so Moses can bring down the Commandments in hard copy, we are told whom Moses took along, and exactly how high up the mountain they were permitted to climb.  Only the Women’s Commentary bothers to point out that this was an all-male group, hinting that the women were all back in camp, presumably cooking dinner for the hikers, and refraining from seething any kids in their mothers’ milk.  And only the Women’s Commentary reminds us of the worry that occupied the gender-sensitivity-conscious translators of new JPS:  making distinctions to clarify when the Hebrew masculine plural pronoun You refers only to men and when it must indicate that the mishpat is inclusive of women as well. 

 Even though this parasha does not wow us with its narrative virtues, it does contain two Mishpatim that are as familiar to us as the stories of Cain and Abel or Joseph and his brothers: the law mentioned previously about not seething a kid in its mothers’ milk and the even more familiar law of retribution, an eye for an eye and a tooth for a tooth.   Somewhere in the course of preparing this drash, I came upon a distinction between two Hebrew words that both mean laws – Mishpatim and Chukot.  When I went back to my bookcase so I could credit the source, I wasn’t able to find the reference, but I couldn’t have imagined it or made it up.  Mishpatim, it appears, is the word reserved for laws that make sense, which society could have figured out on its own.  Chukot, on the other hand, are laws that are arbitrary, in the vein of that wonderful bumper sticker, “Because I’m the Mommy, that’s why!”    I will posit, and later on you can argue with me, that an eye for an eye is a mishpat, and not seething a kid is a chuka.  Please note that much of the presentation of case law in this parasha is conditional – if a man does such and such, then this is what you do.

However, the prohibition of seething a kid in its mother’s milk is not presented conditionally.  It is a flat out statement in the text, placed in the context of observing the festivals and bringing the first fruits.  Its importance is emphasized by its appearing twice more in Chumash, again in Exodus in an almost identical setting, and then in Deuteronomy in a context of other dietary laws.  Although the commentators cited in Etz Hayim and in ArtScroll seek to ascribe it humanitarian and spiritual values, they are all inferential.  The Women’s Commentary does note that the statement is not gender-specific, but goes on to comment that few Biblical laws have had so much impact on women, because they over the centuries are the ones who have had to cope with all the embellishments of separation of milk and meat that got added to the original simple command.  

Conditionality pervades the discussion of an eye for an eye and a tooth for a tooth, and so, I discovered to my surprise, do gender issues.  Chapter 21, verse 20 starts If a man strikes his manservant or his maid-servant.  My other commentaries don’t pick up at all on the inclusion of the maid-servant; the Women’s Commentary of course does, citing it as one of several places where Torah raises the status of women beyond what was standard in the society of its time.  The text examines the consequences of a pregnant woman miscarrying or dying because she got in the way of a fight between two men.  All the commentaries provide the general disclaimer that an eye for an eye, a tooth for a tooth was never about mutilation but about reasonable compensation – neither over-reaction nor under-punishment.  ArtScroll worries about the nationality of the injured servant – treatment would be different for a Hebrew than for a foreigner – and only the Women’s Commentary among the three takes the time to point out that this is the only place in Torah that discusses the status of the fetus.    As I said earlier, the Women’s Commentary, prepared under Reform auspices, does not take materially different positions on issues that all the traditional commentators cover – but it does pick up on issues that the others ignore.  

As the parasha draws to its close, we have Moses on the mountain sharing with the people all the words that God has spoken to him, and we hear them respond, amazingly, in one voice, saying that they will do what God has told them to.  This is emphasized a verse or two later, when they repeat their acceptance of God’s words with the familiar but problematic response, Naaseh v’nishmah.  We will do, and we will hearken.  Why are the people promising to perform before they have heard what might be asked of them? 

When I began my adult study of Chumash, naaseh v’nishmah was presented as an important statement of faith – OK, God, we’re your boys, now tell us what you want from us.  Certainly it would have been more natural to say, Nishmah v’naaseh – let’s hear what you have to say before we tell you we’ll do it. 

The contemporary take accepts the paradox, and appears to derive its response from Rashi’s solution.  Remember that the idea that every translation is a commentary was as true ten centuries ago as it is today.  Rashi takes the translation of lishmoah, to hear, out of the physiological, and puts into the behavioral, to listen interpreted as to heed, to obey.  Old JPS says We’ll do it and we’ll obey; new JPS collapses the two verbs into a verb adverb combo, and gives us everything you’ve said, we’ll faithfully do.   The most satisfactory drash I found on this problem is supplied by Richard Friedman, who takes naaseh v’nishmah to mean, We’ll do what you’re saying now, and we’re going to continue listening to you in the future.  What we learn from this is what Barbara Levie taught us a few months back when I posed the question about the meaning of tam – even if you accept it as simple, Webster gives us 17 alternate definitions  for simple.  Many words, in English as in Hebrew, have depths of meaning.

I remain an exponent of concentrating on the p’shat, the literal or simplest translation of the words, so I tend to stay with nishmah in its sense of hearing.  I do not read Shma Yisrael, for example, as Obey, Oh Israel.  But I leave you now to discuss how you feel about both the word order and the translation of Naaseh v’nishmah. 

As a second question (or a third, depending on how you count), I invite you to discuss whether An eye for an eye is logical, something society could figure out for itself, and therefore a mishpat, while not seething the kid is arbitrary, Do it because I say so,  and thus a chukah.  

Finally, let’s hear it, especially from the women about the Women’s Torah Commentary.  As a woman, how do you feel about not going up the mountain?  Does this parasha, which  provides rights to women beyond what was the presumable norm in the neighboring societies, atone for the general role of women in historical Judaism, and even today in Orthodoxy?  And in the same vein, what does it say about us, in the unabashedly egalitarian Reform movement, that even we had to be given a Women’s Commentary?   


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