To Read the printable PDF click here:Mishpatim – Between God’s Authority and Man’s conscience
The Role of Ethics in Modern Thought:
In the history of modern thought there were two central trends of understanding ethics. Humanist ethics which stressed the ability of man, through his knowledge senses and rationale, to self legislate moral conduct; And theistic ethics or God based ethics, that placed the centrality of moral law at the foot of a Divine will.
In Jewish thought, despite Judaism being a God based religion this duality also exists. There are those, such as Yeshayhu Leibowitz, that believe that there exists no ethic outside of the Halachic system, and total submission to God’s will, without concern for any internal or external ethical voice, is required. Those of the opposing view, such as Rabbi David Hartman, Rabbi Eliezer Berkovits and Rav Yehuda Amital to name a few, integrate both humanist and theistic ethics. They employ keywords such as human autonomy and natural morality and emphasise the centrality of human conscience and natural ethics.
The context and content of Parashat Mishpatim:
Parshat Mishpatim, in my mind, comes to remind us that, like most fundamental ideas in Judaism, we need to recognise the dialectical tension between the two. Immediately following the greatest epiphany of all time where the people submit themselves absolutely to the will and law of God, we have a strange interlude. Parshat Mishpatim which ends with a covenantal ceremony, apparently still part of the Har Sinai experience, seems strangely placed. Rashi whose principle of ‘אין מוקדם ומאוחר בתורה’ – there is no chronological order in the Torah i.e. certain paragraphs may be placed thematically as opposed to chronologically, decidedly places the entire section of the covenantal narrative (chapter 24) earlier than recorded. Hence the question of placement at the this point is important.
If we take a step back and look at the context of Parshat Mishpatim, as well as its content, it is easy to answer our question. As we already mentioned Mishpatim – which consist generally of civil laws, is situated between two accounts of the Har Sinai experience. The first as we saw last week can be simply described as a narrative of fear, compulsion and awe. The second which occurs at the end of this week’s parasha, describes a ceremony that took place at the foot of the mountain, which portrays a far more willing agreement, infact the famous statement of נעשה ונשמע actually doesn’t take place until now. Only once the people have heard the laws, have sampled the goods, are they willing to ‘do and hear’. In this account man becomes an informed, thoughtful, willing partner whose consent is neither coerced or threatened, but rather voluntary and consciously given. The ceremony is reminiscent of covenantal ceremonies in the ancient world where two partners deliberately enter into an agreement, knowing the conditions.
Thus the context into which Parshat Mishpatim is placed is clear. It comes sandwiched between two accounts of Matan Torah; one could be described as an authoritarian narrative and the other a voluntary narrative.
The content of Parshat Mishpatim is also paramount. The laws which are listed are all civil or ethical laws. In addition, perhaps more than any other place in Torah, here is a selection of Mitzvot which cannot possibly be understood without the Oral law. It would be impossible, for example, to understand the verse ‘an eye for an eye’, without the interpretation provided in the Mishna, as well as many of the civil laws which are elucidated at length in the Torah Shebaal peh. Parshat Yitro presented the clear Divine law, set out explicitly and formally as Torah Shebichtav – the written law. Parshat Mishpatim offers a different picture. Laws that are complex, multifaceted, circumstantial and in need of human interpretation. Mishpatim needs human input.
In Mishpatim, laws that are repeated at other points in the Torah, are presented here in their ethical and logical dimension, for example Shmitta and Shabbat (to feed the poor and to let the stranger and animals rest) and Kashrut – cruelty of an animal being killed in its mother’s milk.
Let us look at a few of the key phrases in the narrative:
כ וְגֵר לֹא-תוֹנֶה, וְלֹא תִלְחָצֶנּוּ: כִּי-גֵרִים הֱיִיתֶם, בְּאֶרֶץ מִצְרָיִם. כא כָּל-אַלְמָנָה וְיָתוֹם, לֹא תְעַנּוּן. כב אִם-עַנֵּה תְעַנֶּה, אֹתוֹ–כִּי אִם-צָעֹק יִצְעַק אֵלַי, שָׁמֹעַ אֶשְׁמַע צַעֲקָתוֹ.
20 And a stranger you shall not wrong, neither shall you oppress him; for you were strangers in the land of Egypt. 21 You shall not afflict any widow, or fatherless child. 22 If you afflict them in any wise–for if they cry at all to Me, I will surely hear their cry. (22:20)
כה אִם-חָבֹל תַּחְבֹּל, שַׂלְמַת רֵעֶךָ–עַד-בֹּא הַשֶּׁמֶשׁ, תְּשִׁיבֶנּוּ לוֹ. כו כִּי הִוא כְסוּתֹה לְבַדָּהּ, הִוא שִׂמְלָתוֹ לְעֹרוֹ; בַּמֶּה יִשְׁכָּב–וְהָיָה כִּי-יִצְעַק אֵלַי, וְשָׁמַעְתִּי כִּי-חַנּוּן אָנִי.
If you at all take your neighbour’s garment to pledge, you shall restore it to him by that the sun goes down; 26 for that is his only covering, it is his garment for his skin; where shall he sleep? and it shall come to pass, when he cries unto Me, that I will hear; for I am gracious. (22:25)
ט וְגֵר, לֹא תִלְחָץ; וְאַתֶּם, יְדַעְתֶּם אֶת-נֶפֶשׁ הַגֵּר–כִּי-גֵרִים הֱיִיתֶם, בְּאֶרֶץ מִצְרָיִם.
And a stranger you shall not oppress; for you know the heart of a stranger, seeing you were strangers in the land of Egypt (23:9)
In each of these sentences God is reminding man to listen to his inner conscience, reminding him that having been created in the image of God he must recognise the value innate in each person, and act like God does, listening to the cry of the ‘other’. I believe in this way perhaps, Parshat Mishpatim, forces us to address the issue of a natural ethic that exists independent of any Divine authority.
Rambam expresses this idea in the Mishnah Torah (meiilah 8:8)
Mishpatim are those mitzvot who rationale are comprehensible, and whose appropriateness for the world as understood’.
Erich Fromm in his book Man for Himself, delineates between two types of conscience. Authoritarian conscience and Humanistic conscience. In his opinion, authoritarian conscience is a negative influence on man that denies him his individuality and ability to achieve his highest potential. Humanistic ethics however, if dictated by a truly free and liberated conscience, will lead man to make the correct ethical decisions.
Thus according to Humanistic ethics, a Divine dictate is superfluous, man needs only his true ethical conscience to know what is good and bad.
Of course Judaism does not follow Fromm’s theory through to its end point, since Divine authority is fundamental to any understating of ethics; However, I do believe that Parshat Mishpatim is the perfect example of the mid-point between the two. If Parshat Yitro addresses the realm of submission, passivity and acceptance of the Divine will, then Parshat Mishpatim conveys the realm of creativity, empathy, subjectivity and inner consciousness, culminating not surprisingly in a true covenantal ceremony.
What this week’s Parsha teaches us is that there is a certain sphere in which man must trust his inner voice and must listen to the cry of the stranger or the oppressed, and interpret Halacha accordingly. This of course is the domain of Torah shebaal peh, the very foundation of understanding Parshat Mishpatim. At the moment of receiving Torah shebichtav, the written law, with all its fixed authority and stringent foundations, we are also introduced to its counterpart, Torah shebaal peh, adorned with its subjectivity, dynamism, and creativity.
Oral Law and Humanism
Many contemporary voices have emphasised these elements in the forming of halacha, most eminently Rabbi Eliezer Berkovits and Rabbi Yehuda Amital. Both of these renowned halachists and theologians base their thinking on the internal working of the Halacha itself and the opinions of personalities such as the Rambam, Saadia Gaon and Rav Kook. They both agree that a human ethic or ‘natural ethic’ is part of the Jewish ideology. Berkovits uses Halachic dictates such as the svara – use of human reasoning as well as others, to suggest that Halacha presupposes a separate realm of reasoning that emanates from our personal internal conscience, or in other words, our humanity. He writes as follows:
‘Halacha as the human way of life in accordance with the Torah, does not aim at absolute truth, nor does it run after the fata morgana of universal truth. Neither of them is accessible to human beings. Its aim is ‘earthly truth’ that the human intellect is able to grasp and for whose pursuance in life man must accept personal responsibility.’
Rav Amital states the following in various lectures given on the topic of Natural Morality:
‘God created man “in His image” (Bereishit 1:2), endowing him with moral sensitivity and a conscience – in other words, with natural morality. This sensitivity has characterized man ever since the world was created, even when it did not stem from a direct Divine command. God turns to man through his conscience and morals.’
In both of their formulations, Halachic considerations and reckoning must be attuned to the ethical dimension and must be interpreted accordingly. That is the flexibility of Halacha as Oral Law in the hands of man.
Hence at the moment of Matan Torah, when we accept the laws, both religious and ethical, the Torah poses both dimensions, in interlocking narratives; the authoritarian realm of God’s will and submission to the written law, and the more humanistic realm of inner conscience and subjective deliberation of the oral law.
I want to conclude by reflecting on the Bracha that is made after reading the Torah. It is a perfect reminder of the idea we are discussing.
“בָּרוּךְ אַתָּה ה’ אֱלהֵינוּ מֶלֶךְ הָעולָם אֲשֶׁר נָתַן לָנוּ תּורַת אֱמֶת וְחַיֵּי עולָם נָטַע בְּתוכֵנוּ. בָּרוּךְ אַתָּה ה’ נותֵן הַתּורָה”
Blessed are you, Lord our God, King of the Universe, who has given us the Torah of truth, and planted within us the way of life (own translation). Blessed are you oh Lord who gives us the Torah
The Sefat Emet touches on this idea many times in his writings. There is a realm where Torah is absolute truth, that must be accepted under total submission and yirat Hashem, but at the same time there is a part of Torah that is ‘planted within us’, its source is Divine, but its expression is human. Perhaps it is what the humanists call the ‘human conscience’, and what we call having רוח אלוקים the spirit of the Divine.
The fact that immediately after hearing these mishpatim the people respond naaseh venishma, followed by the covenantal ceremony at the foot of the mountain (chapter 24) suggests that mishpatim holds the key to comprehending the essence of covenant. Until this point the people have responded to God’s proposal with נעשה – we will do. Now having heard the section on mishpatim, they respond with נעשה ונשמע we will do and we will hear. We will ‘do’ because God has commanded, but simultaneously we will ‘listen’ to our inner conscience and to the cry of the stranger, because that is also part of our covenantal commitment, to be committed to God but also, to be committed to man. The נשמע element of the statement adds a new dimension, that involves listening to oneself and the other and perhaps most poignantly dialogue. To ‘listen’ means to be aware of all the opinions, positions and conditions in order to interpret reality correctly- תורה שבעל פה. The נשמע element infuses into the covenant the human experience.
The very juxtaposition of Yitro to Mishpatim, the 10 commandments to civil and ethical laws, ensures that we do not forget the interrelation between these two narratives. There must never be a moment where we act on pure human conscience and correspondingly, we must recognise the danger of interpreting the law without taking into account our humanist reasoning. As Torah Jews, it is our duty to remember that just as God is compassionate and hears the call of the downtrodden, so we too must listen to our inner conscience and be aware of our Divine call and obligation. The two are intertwined, we cannot have one without the other as seen in through the prism of this week’s Parsha.
 Shemot 24:1 Rashi places the covenantal ceremony in chapter 24 prior to Har Sinai
 See Nachum Sarna: Exploring Exodus chapter 8. There is an extensive discussion around the notion of what he terms ‘a narrative matrix’ where secular and religious laws are intertwined and the oral and written elements of the giving of the law constitute a unique acceptance on the part of the people which was unprecedented in ancient communities.
 We see many examples of the stress on subjectivity versus objectivity of Halacha, perhaps most well know the story of the oven of Achnai Baba Metzia 59b
 Eliezer Berkovits: Not In Heaven p56
 I often question, like many whether we are fulfilling the purpose and telos of Torah she baal peh today, when Halacha has lost its fluidity and flexibility, and instead in many areas remains static and inflexible.
 Sefat Emet see his writings on Shavuot, Mishpatim and Purim