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Mishpatim 5771

By: Rachel Himelstein

The opening words to Parshat Mishpatim, ve’eyla hamishpatim asher tasim leefneyhem, "and these are the ordinances that you shall place before them", provide the linkage to last week’s Parshat Yitro and the Ten Commandments.  Rashi explains that when the Torah uses the word "these", eyla, concerning a new idea or piece of information, it might seem to annul a previous statement. However here in Parshat Mishpatim it begins with ve’eyla, "and these", the vav, "and" is significant.  Rashi tells us that “kol makom shene’emar eyla passal et harishonim, ve’eyla mosif al harishonim, ma harishonim mi’sinai af ayloo mi’sinai”, “wherever it says eyla it disconnects itself from the earlier discussion.  When it saysve’eyla, it adds (supplements) to the earlier discussion.”
Just as the Ten Commandments are from Sinai, so too we recognize the laws that will be described in this week’s Parsha as being from Sinai.
The Ramban takes this further, connecting the Ten Commandments to words spoken by Hashem, after the revelation, understanding the later words as reflections of the Commandments themselves. The first of the Ten Commandments concerns the recognition of Hashem and the second prohibits idolatry.   These ideas seem to be reiterated with the words in our parsha “you yourselves saw that I spoke to you from heaven” (Shmot 20, 19), and the next pasuk “you shall not fashion gods of silver or gold” (Shmot 20, 20).
Following this theme the third commandment – lo tachmod - “thou shall not covet” can be paralleled to the laws that are in Parshat Mishpatim.  Details of property, damages and ownership in our parsha clarify for the individual that which is rightly his, whilst ensuring that he does not covet or seize something that is not. These laws emphasize the individual and his place in this world.  They also remind him to respect the boundaries of a just society.
Rav Shimshon Rephael Hirsch speaks of the construction of the altar immediately preceding the opening pasuk. It is symbolic; “that our whole relationship to Hashem is to be taken as one through which justice and humaneness for building up human society and morality and decency for the work of each individual on himself are to be gained and formed on a firm unshatterable basis.  To that principle the ‘vav’ adds the Mishpatim, the legal laws, by which the building up of Jewish society on the basis of justice and humaneness is first of all ordered.  The sword of force and harshness are to be banned from the Jewish state only then can we erect an altar to Hashem in their midst.”  Rav Hirsch is concerned with controlling and restraining the impulses in man that hinder his development and ability to reach the “heights of the altar”.  Rav Hirsch continues that the mishpatim are thus taught before the building of the Mishkan.
Strikingly, we start with the first laws that describe the Jewish slave, eved ivri, and move on to laws of loans, forbidden food, sacrifices and holidays.  Rav Michael Hattin notes the curious mingling here of civil and ritual law, which in other societies and compilations are generally dealt with in separate works.  Even though we tend to accept civil law as meaningful because it makes sense, we often question ritual law as it defies rational enquiry.  However, in our parsha, the combination of both areas of law reflects a commitment to the whole picture.  For us there is no intrinsic difference since we recognize Hashem’s authority over both realms.
These laws appear to set the stage for a just and humane society where Hashem’s authority is recognized to govern both civil and religious aspects of life. We must aim to be meticulous in our relationship with our fellow man just as we aim to respect and serve Hashem.
Very specific cases are brought in the parsha and Rav Hirsch emphasizes that these laws written in the Written Law must be understood with the Oral Law.  These words are to be understood as the “short notes on a full and extensive lecture...”, Hirsch commentary on the Torah (Shmot 21, 2). “Then we can understand how the language used in this ‘book’ is so skillfully chosen that often by the use of a striking expression an unusual or altered construction, the position of a word ,a letter etc., a whole train of ideas of justice and human rights is indicated”.
Nevertheless it seems odd that a people that only a year ago were taken out of Egypt and the confines of the terrible persecution of slavery are now being instructed in the laws of slavery.  How can this be the first law addressed, specifically one that deals with issues of freedom and human rights?
Written evidence of slavery can be traced to the Code of Hammurabi 1760 BCE yet it existed in many ancient civilizations. Records of human slavery are seen in ancient Greece and it was accepted by Aristotle that some men are slaves by nature. As the Roman Republic expanded out, entire populations were enslaved for labor and amusement.  Today activists fight to abolish forced labor.  The trade of slaves in England was made illegal in 1102.  In 1865 legalized slavery ended in the United States.Yetziat mitzrayim may be the first written record of a movement to free slaves.
A peak at Wikipedia shows slavery as described as “a system where people are treated as property and are forced to work.  They can be held against their will and deprived of the right to leave.  In some historical situations it has been legal for owners to kill slaves”.
Rav Hirsch explains that when building the principles of rights and humaneness, the Torah demands respect for the human being and starts with the criminal.
Who is the Jewish slave, the eved ivri (Shmot 21, 2)?
According to Rav Hirsch, the Oral Law teaches us that this case refers to the thief who cannot restore the value of his theft to the victim. Thus he is sold as a slave to cover the financial loss that he cannot repay.  Such a sale is only imposed on male thieves and not on females.  The slave must cover the cost of the theft and he may not even be kept in slavery to cover the additional fine.  He can only be bought from the court that declared him a slave but he must remain to the buyer as a Jew, an ivri, a fellow national (Mechilta).  Only the court can refer to him with the derogatory phrase, eved ivri, as it has no choice but to do so.  The slave must work six years even if the master dies, but will only serve the son as slavery is not extended to any other heir.  He goes free in the seventh year.  Even the nature of the work that the slave does must be defined, such that no other type of work can be requested of him.  The Halacha is very clear regarding the laws and rights of the slave and extends to discussions over marriage and children.  There are differing laws regarding one who becomes a slave out of poverty.
If one makes a comparison to other cultures with laws of slavery, far harsher punishment is generally meted out.  Both the Hammurabi and Middle Assyrian laws respond heavily.  In Devarim 23, 16 the Torah makes clear that a person must not deliver a runaway servant back to the master after the servant escaped to his home.  In the Code of Hammurabi 16, however, it is stated that one could be put to death for not bringing the runaway servant back to the public domain.
In Shmot 21, 5-6 the servant can choose not to go free if he declares his love for his master.  He would then have his ear pierced at the door, and from that point he serves the master forever.  In the Code of Hammurabi 282 if a slave says to his master “you are not my master” he may be convicted and his master shall cut off his ear.
In the book The Road Less Traveled by M. Scott Peck, a person must confront and solve problems. It is often a painful and difficult process, one that most people try to avoid.  However doing so allows a person to arrive at a greater understanding of themselves and their place in the world.  This can be achieved with discipline and using four basic tools: delaying gratification, accepting responsibility (not blaming others), dedication to truth (reality), and balancing or giving up something in order to gain something of transcendent importance.
The Torah’s response to the crime of stealing and being unable to repay is a process.  It requires the thief to take responsibility for his actions and actively attempt to carry the consequences.  He knows that he will be bound to a time-limited framework where he is free to start a family but not free to let go of his obligations.  He will have to grow familiar with those from whom he tried to steal and be cared for by them.  This is the only case where the Torah commands a deprivation of freedom as the punishment yet with sensitivity to the criminal’s self-confidence.  He is to love and be loved.  If he already has family, he may not be separated from them.  Since he cannot provide for his family the master must also provide for them while he benefits from the labor of the slave, and the family should not suffer extra distress.
The Torah’s focus is related to repayment of theft and attempting to make an impact on the criminal.  The Torah’s choice of phrase, the Jewish slave, eved ivri, rightly describes a lack of freedom yet is more concerned with rehabilitation back into life and another chance at becoming a member of society who is able to respect and acknowledge the boundaries of life that create a just and humane society.  During the Shoah, a she’alah was asked if in the Ghetto Jewish residents could say the bracha from the morning blessings, "who did not make me a slave",as they were in a situation of forced labor.  The answer given was that the bracha refers not to physical labor but rather to the slavery of the soul.  The Jew is obligated in mitzvot even as a captive and even if he is unable to do mitzvot it is because he is forced against his will.  Therefore he should still say the bracha.  He can still try to exercise control over his very being.  He may be forced to work but they cannot make him lose his identity as an oved Hashem, a servant of Hashem.
Further along in our parsha we see one who chooses to become a slave.  This person gives up freedom and chooses to remain in the framework of the master, and so he has his ear pierced to mark him as a slave.  This slave has knowingly chosen to give up the right to independent behavior and taking responsibility for his own choices and future.
The Torah is encouraging all of us to choose a life of free choice, and of Avodat Hashem, instead of serving another or undertaking any other activity to which, in today’s age, we can become enslaved.
Shabbat Shalom, Rachel Himelstein


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