Mishpatim | פרשת משפטים | Dr. Tamar Ron Marvin

Shemot 21:1-24:18 [Hebcal] [על-התורה] שמות כא א-כד יח

Haftarah: Yirmiyahu 34:8-22 (Sefardi and Ashkenazi) | Yirmiyahu 34:8-35:14 (Teimani) | Unless it is Shabbat Shekalim or Shabbat Rosh Chodesh (Adar)

[על-התורה] הפטרה: ירמיהו לד ח-כב (ספרדים ואשכנזים) | ירמיהו לד ח-לה יט |(תימנים) | אלא אם כן זו שבת שקלים או שבת ראש חודש (אדר)

Parashat Mishpatim (“rules” or “judgements”)¹ indeed contains a code of law, mostly civil law. An important factor to consider with regards to Parashat Mishpatim is that there is an extensive amount of Oral Law that goes along with this section of the Written Law, and the language of the laws must be read alongside rabbinic tradition. The following makes note of major factors in the Oral tradition without going into detail about the applied halacha, which would require volumes.

“These are the rules”

[Shemot 21:1]

Parashat Mishpatim opens with the statement, “These are the rules that you shall set before them” (וְאֵלֶּה הַמִּשְׁפָּטִים אֲשֶׁר תָּשִׂים לִפְנֵיהֶם). This seems to clearly refer to the laws that immediately follow, which are comprehensive and detailed. But perhaps they were given to Moshe during the forty days and nights he stayed on Har Sinai, described below in our parsha? When in the timeline were “these rules” given to Moshe?

The answer to this chronology question is subject to major disagreement between Rashi and Ramban. Rashi’s view suggests that this parsha is written out of order. In Mishpatim, we first read about “these rules” and later hear about Brit Sinai, the covenantal ceremony when the Jews agree, “Naaseh ve-nishma,” “We will do and listen.” Although “these rules” come first in the text, according to Rashi, they were given later, during Moshe’s (first) forty days and nights on Har Sinai. Moreover, Brit Sinai actually occurred earlier, before Aseret ha-Dibrot (the Ten Commandments) as described in the previous parsha, Yitro. In Parashat Yitro he writes:

ליום השלישי. שֶׁהוּא שִׁשָּׁה בַחֹדֶשׁ, וּבַחֲמִישִׁי בָּנָה מֹשֶׁה אֶת הַמִּזְבֵּחַ תַּחַת הָהָר וּשְׁתֵּים עֶשְׂרֵה מַצֵּבָה – כָּל הָעִנְיָן הָאָמוּר בְּפָרָשַׁת וְאֵלֶּה הַמִּשְׁפָּטִים – וְאֵין מֻקְדָּם :וּמְאֻחָר בַּתּוֹרָה

For the third day, which is the sixth of the month. On the fifth Moses built the altar under the mountain and the twelve monuments [Brit Sinai, see below] — the whole narrative as is stated later on in Parashat Mishpatim [Exodus 24:4], for there is neither “earlier” nor “later” in the Torah [from Mechilta 19:10:1-2].
Rashi on Shemot 19:11

In other words, Brit Sinai (the Sinai Covenant) described in Parashat Mishpatim actually occurs chronologically before the Aseret ha-Dibrot: Brit Sinai is commanded on the fourth of Sivan and performed on the fifth of Sivan, then Matan Torah occurs on the sixth of Sivan. Rashi emphasizes this again in our parsha:

ואל משה אמר. פָּרָשָׁה זוֹ נֶאֶמְרָה קֹדֶם עֲשֶׂרֶת הַדִּבְּרוֹת, בְּד’ בְּסִיוָן נֶאֱמְרָה לוֹ עֲלֵה (שבת פ”ח):

And to Moshe He said — This section [in Mishpatim] was spoken before the Ten Commandments were given; it was the fourth of Sivan when “Come up” was said to him (Shabbat 88a).
Rashi on Shemot 24:1

Later, during Brit Sinai, when we are told “Moses then wrote down all the commands of Hashem,” Rashi explains that this refers not to “these rules” but to all that had transpired up until that point:

ויכתב משה. מִבְּרֵאשִׁית וְעַד מַתַּן תּוֹרָה, וְכָתַב מִצְווֹת שֶׁנִּצְטַוּוּ בְמָרָה:

Moshe wrote — from “In the beginning” (bereshit – בראשית) up to the account of the Giving of the Torah and he wrote down the commandments that were given to them in Marah [based on Mechilta on Shemot 19:10].
Rashi on Shemot 24:4

According to Rashi, then, the code of mishpatim (“these rules”) was later received by Moshe during his first forty days and nights on Har Sinai.

According to the view advanced by Ramban, however, the Torah does proceed chronologically here. First, the people received the Aseret ha-Dibrot; then, Moshe was instructed with the mishpatim which which Parashat Mishpatim opens. It was the contents of this code (“these rules”) that were presented to the people when they entered into Brit Sinai and agreed to live by them.

Slavery

[Shemot 21:2-11]

The first set of laws given concerns slavery, which the Torah seeks to regulate so as to make it more humane.²

A Hebrew slave (עבד עברי) goes free in the seventh year. (More on this seventh year and its significance follows.) Also, slave families are not to be separated: husbands and wives must remain together, unless the master was the one who provided the wife, in which case the husband can go separately, but the wife and children remain. In such a case, the slave has the option of staying with his wife and family, but he must then remain as a slave with is master for life, which is signified by making a hole in his earlobe with an awl.

Another set of protections applies to a woman sold as a slave-wife; she does not go free in the seventh year, but must be freed if found unsuitable. If the master marries her to a son or else takes another wife, he may not mistreat the slave-wife.

Manslaughter as Opposed to Capital Crimes

[Shemot 21:12-22]

A person who strikes a person, killing them, incurs the death penalty; if the killing was unintentional (i.e., manslaughter), then they may go to a place of sanctuary. Conspiratorial murder incurs the death penalty, as does striking or insulting a parent, kidnapping, and murder of a slave. If the victim is injured, then the guilty party must pay damages. Similarly, if a violent attack causes a woman to miscarry, the guilty party is liable to be fined.

An Eye for an Eye, meaning Financial Compensation

[Shemot 21:23-27]

וְאִם אָסוֹן יִהְיֶה וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ: עַיִן תַּחַת עַיִן שֵׁן תַּחַת שֵׁן יָד תַּחַת יָד רֶגֶל תַּחַת רָגֶל: כְּוִיָּה תַּחַת כְּוִיָּה פֶּצַע תַּחַת פָּצַע חַבּוּרָה תַּחַת חַבּוּרָה: וְכִי יַכֶּה אִישׁ אֶת עֵין עַבְדּוֹ אוֹ אֶת עֵין אֲמָתוֹ וְשִׁחֲתָהּ לַחָפְשִׁי יְשַׁלְּחֶנּוּ תַּחַת עֵינוֹ: וְאִם שֵׁן עַבְדּוֹ :אוֹ שֵׁן אֲמָתוֹ יַפִּיל לַחָפְשִׁי יְשַׁלְּחֶנּוּ תַּחַת שִׁנּוֹ

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.
Shemot 21:23-27

The concept of “an eye for an eye,” known from other ancient Near Eastern law codes, most prominently the Code of Hammurabi, is so foundational to the international development of law there is a Latin term for it: lex talionis (“law of retaliation”). Importantly, in Jewish law “an eye for an eye” refers to monetary compensation in proportion to the damage.³ For example, as per the next law, if the eye of a slave is destroyed, then the the slave goes free.

Torts (Damages)

[Shemot 21:28-22:5]

The paradigmatic case in the Torah for damages is that of the ox who causes harm or injury. If the ox gores a person to death, it itself is killed and may not be eaten, but its owner is not held responsible. However, if it is an ox known to gore that the owner has failed to properly restrain, both the ox and the owner incur the death penalty. In the case of a slave, the owner is paid damages and the ox is killed.

Likewise, if someone digs a pit (in the public domain) and fails to take precaution lest an animal or person fall into it, they are liable for damages. If an animal kills another animal, the owner is bound to sell the responsible animal and split the proceeds with the owner of the dead animal, while the owner of the dead animal is to split the meat with the owner of the live (and now sold) animal.

If a person steals an animal and either slaughters it or sells it, they are fined fivefold for oxen or fourfold for sheep.

Murder in self-defense (the case given is of a thief in the process of robbery) is not a capital crime, but it must be clear that the suspect intends harm. Caught thieves must make restitution or risk being sold into slavery.

One is liable to pay restitution for damages caused by one’s animals. If the one responsible for starting a fire damages food stores, they are responsible to pay restitution.

Guardianship

[Shemot 22:6-14]

The next set of laws deals with the situation of the shomer, one who is legally responsible for guarding another’s property. If a thief steals guarded property and is caught, the thief pays double their value.

Hashem is to be consulted in cases where two people both claim ownership of a property. In cases where a guarded animal dies or is injured, the guardian and the owner must takes oaths, but no restitution is required on the part of the guardian. But if the animal was stolen, then the guardian must make restitution to the owner. The guardian needs to produce evidence of a domestic animal having been hunted by wild animals and is then not liable.

If a person borrows or hires another person’s animal, they are responsible if the animal is injured or dies, provided the owner was not with it.

Sexual Misdemeanors

[Shemot 22:15-18]

A rapist is obligated to marry his victim, paying the full bride-price, unless her father objects, in which case the perpetrator pays out the equivalent of the full bride-price.

Though not directly related to sexual crimes, the Torah next says that a sorceress (or witch) may not be left alive.

Bestiality is a capital offense.

Idolatry

[Shemot 22:19]

Anyone who offers sacrifice to a god is excommunicated (יָחֳרָם).

Protection of the Marginalized

[Shemot 22:20-27]

In a phrase repeated many times in the Torah, it says, “You shall not wrong or oppress a stranger, for you were strangers in the land of Egypt” (גֵר לֹא תוֹנֶה וְלֹא תִלְחָצֶנּוּ כִּי גֵרִים הֱיִיתֶם בְּאֶרֶץ מִצְרָיִם). Widows and orphans also must not be ill-treated. This injunction is expressed with heightened emotion:

אִם עַנֵּה תְעַנֶּה אֹתוֹ כִּי אִם צָעֹק יִצְעַק אֵלַי שָׁמֹעַ אֶשְׁמַע צַעֲקָתוֹ: וְחָרָה אַפִּי וְהָרַגְתִּי אֶתְכֶם בֶּחָרֶב וְהָיוּ נְשֵׁיכֶם אַלְמָנוֹת וּבְנֵיכֶם יְתֹמִים

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 own wives shall become widows and your children orphans.).
Shemot 22:22-23

In lending money to the poor, no interest may be taken. If one takes a vital item, such as a coat, as collateral, it must be returned before nightfall.

Leaders must be respected and may not be cursed.

Tithing

[Shemot 22:27-29]

First yields, including firstborn animals and children, must be tithed (or redeemed).

Treif

[Shemot 22:30]

One may not eat meat that has been torn by wild animals, known as treifa – טְרֵפָה.

Fairness and Justice

[Shemot 23:1-9]

It is forbidden to spread false rumors or act as a malicious witness. Neither the rich nor the poor are to be shown deference in a dispute.

If you encounter a lost animal you recognize, you are required to return it to its owner, even when that owner is your enemy. You must also come to the aid of a suffering animal even if it belongs to your enemy.

Bribery is forbidden.

The Shemita (Fallow) Year

[Shemot 23:10-12]

Every seven years, the ground is to be allowed to lie fallow (unplanted with crops). The poor are allowed to eat from whatever grows, including vineyards and olive groves. The rest is left to animals.

Similarly, six days of the week are set aside for your work (מַעֲשֶׂיךָ) while the seventh one must cease from labor, including domestic animals, slaves, and foreigners.

Mentioning other gods is not allowed.

Festivals

[Shemot 23:13-19]

Three times a year, the Jews are to observe festivals (שָׁלֹשׁ רְגָלִים תָּחֹג לִי בַּשָּׁנָה). The first is Chag ha-Matzot (the holiday of unleavened bread, known to us as Pesach or Passover) in the month of Aviv (i.e., Nisan), commemorating Yetziyat Mitzrayim (the exodus from Egypt). The second is Chag ha-Katzir (the holiday of the harvest, known to us as Shavuot), on the occasion of the first fruits of the harvest; and Chag ha-Asif (the holiday of gathering, known to us as Sukkot), at the end of the (Torah) year, when the full harvest is gathered. On these occasions, all males (of majority age) must appear before Hashem, meaning, once it’s built, the Mishkan (Tabernacle) and then the Beit ha-Mikdash (Temple).

We are now told several details of korbanot (sacrifices – here called, as they usually are, zevachim – זִבְחִים). They must not be offered with leavened products, and their fat may not be left over until morning.

The choicest first fruits (bikkurim – בִּכּוּרֵים) must be brought to Hashem.

No Mixing Meat and Milk

[Shemot 23:19]

One of the most important tenets of kashrut is now given:

:לֹא תְבַשֵּׁל גְּדִי בַּחֲלֵב אִמּוֹ

You shall not boil a kid in its mother’s milk.
Shemot 23:19

An Angel to usher in the Future

[Shemot 23:20-33]

Hashem promises to send an angel to guide the people to the place He has prepared for them. The angel must be obeyed, and Bnei Yisrael will be victorious over their enemies who seek to stop them, include the Amorites, Hittites, Perizites, Canaanites, Chivites, and Yebusites. Not only must Bnei Yisrael not worship the gods of these people, they must utterly destroy the idols. Hashem will then watch over them, blessing their food, saving them from sickness, and enhancing their fertility and lifespan. Terror and plague will come ahead of Bnei Yisrael, driving out the various peoples occupying the Land⁠—but little by little, so that the land won’t become desolate.

Hashem now gives the maximal boundaries of Eretz Yisrael:

וְשַׁתִּי אֶת גְּבֻלְךָ מִיַּם סוּף וְעַד יָם פְּלִשְׁתִּים וּמִמִּדְבָּר עַד הַנָּהָר כִּי אֶתֵּן בְּיֶדְכֶם אֵת :יֹשְׁבֵי הָאָרֶץ וְגֵרַשְׁתָּמוֹ מִפָּנֶיךָ

I will set your borders from the Sea of Reeds to the Sea of Philistia, and from the wilderness to the Euphrates; for I will deliver the inhabitants of the land into your hands, and you will drive them out before you.
Shemot 23:31

There is much further discussion in the Oral Torah about the extent of Eretz Yisrael, which includes this and other indications in the Torah.

Hashem emphasizes that the people are susceptible to foreign worship and that they must be careful to guard against this eventuality.

Brit Sinai

[Shemot 24:1-11]

We are next told that Hashem commands Moshe, Aharon, and the seventy elders of Israel (שִׁבְעִים מִזִּקְנֵי יִשְׂרָאֵל) to approach, but only Moshe shall draw near to Hashem.

וַיָּבֹא מֹשֶׁה וַיְסַפֵּר לָעָם אֵת כָּל דִּבְרֵי ה’ וְאֵת כָּל הַמִּשְׁפָּטִים וַיַּעַן כָּל הָעָם קוֹל אֶחָד :וַיֹּאמְרוּ כָּל הַדְּבָרִים אֲשֶׁר דִּבֶּר ה’ נַעֲשֶׂה

Moshe went and repeated to the people all the commands of Hashem and all the rules; and all the people answered with one voice, saying, “All the things that Hashem has commanded we will do!”
Shemot 24:3

Moshe then writes down all the words of Hashem. He builds an altar at the foot of Har Sinai, with twelve pillars representing the twelve tribes of Israel. Along with assistants, he offers burnt-offerrings (עֹלֹת) and wellbeing offerings (זְבָחִים). Moshe takes half of the blood and puts in basins, dashing the other half of the blood against the altar.

Moshe then takes out the written record of the covenant and reads it out. The people reply again:

:וַיֹּאמְרוּ כֹּל אֲשֶׁר דִּבֶּר ה’ נַעֲשֶׂה וְנִשְׁמָע

All that Hashem has spoken we will do and heed (naaseh ve-nishma)!
Shemot 24:7

Moshe then takes the blood in the basins and dashes it on the people, saying, “This is the blood of the covenant that Hashem now makes with you concerning all these commands” (הִנֵּה דַם הַבְּרִית אֲשֶׁר כָּרַת ה’ עִמָּכֶם עַל כָּל הַדְּבָרִים הָאֵלֶּה).

Moshe, Aharon, and the seventy elders ascend higher on the mountain.

וַיִּרְאוּ אֵת אֱלֹקי יִשְׂרָאֵל וְתַחַת רַגְלָיו כְּמַעֲשֵׂה לִבְנַת הַסַּפִּיר וּכְעֶצֶם הַשָּׁמַיִם :לָטֹהַר: וְאֶל אֲצִילֵי בְּנֵי יִשְׂרָאֵל לֹא שָׁלַח יָדוֹ וַיֶּחֱזוּ אֶת הָאֱלֹקים וַיֹּאכְלוּ וַיִּשְׁתּוּ.

They saw the G-d of Israel—under whose feet was the likeness of a pavement of sapphire, like the very sky for purity. Yet He did not raise a hand against the leaders of the Israelites; they beheld G-d, and they ate and drank.
Shemot 24:10-11

Luchot ha-Brit (the Tablets of the Covenant)

[Shemot 24:12-18]

Hashem tells Moshe to ascend to the top of Har Sinai to receive the stone tablets (luchot – לֻחֹת) “with the teachings (ha-torah) and commandments (ha-mitzvah) which I have inscribed to instruct them” (וְהַתּוֹרָה וְהַמִּצְוָה אֲשֶׁר כָּתַבְתִּי לְהוֹרֹתָם). Moshe and his attendant Yehoshua arise to undertake this mission. Moshe tells the elders that they have Aharon and Chur with them to handle any legal matters that might arise and require judgement in Moshe’s absence.

When Moshe ascends the mountain, a cloud covers it and remains for six days. On the seventh day, Hashem calls out to Moshe from the midst of the cloud, and “the Presence (Kavod) of Hashem appeared in the sight of the Israelites as a consuming fire on the top of the mountain” (וּמַרְאֵה כְּבוֹד ה’ כְּאֵשׁ אֹכֶלֶת בְּרֹאשׁ הָהָר לְעֵינֵי בְּנֵי יִשְׂרָאֵל). Moshe enters the cloud and remains there for forty days and forty nights, the first of three such eventual sequences of forty days and nights spent on Har Sinai.

Haftarah Summary – הדבר אשר היה אל ירמיהו

[Yirmiyahu 34:8-22, 33:25-26]

This section of Yirmiyahu includes a dramatic description of slaves going free. This moment comes when the beleaguered kingdom of Yehuda, which has been battered by years of Babylonian offense, enjoys a reprieve: Nebuchadnezzar abandons the last strongholds in Yehuda to go fight the Egyptians. King Tzedekia of Yehuda calls for the emancipation of the many poor Jews enslaved by the wealthy. At a ceremony at the Beit ha-Mikdash, the elites voluntarily pledge to free their slaves. However, they enslave them again shortly. Yirmiyahu warns that this will lead to dire consequences. The haftarah then ends with a few lines from the previous perek that, in consolation, speak about the restoration of the Davidic dynasty.

On Shabbat Shekalim

[Maftir: Shemot 30:11-16; haftarah: Melachim Bet 12:1-17]

When Parashat Mishpatim falls out on the Shabbat before or of Rosh Chodesh Adar, it is Shabbat Shekalim, one of the Four Pashiyot read before Pesach. The section in Parashat Ki Tisa about the half-shekel tax is read as the maftir, and then the haftarah is about King Yehoash raising monies for the repair of Beit ha-Mikdash.

Image: Marc Chagall, Le Dix Commandements, c. 1966.

Notes

The mitzvot (commandments) of the Torah are traditionally divided into three types: (1) mishpatim – משפטים, “rules” or “judgements,” which are rational laws, meaning those that people would have come up with even left to their own reasoning; (2) chukim – חוקים, “decrees,” which are supra-rational laws, or laws the reasons for which are not apparent to humans; and (3) eidot – עדות, “testimonies,” laws which are symbolic or otherwise have a rational explanation, but are not necessary such that they would not have been derived by reason alone.
Applying Rambam’s theory about korbanot in Moreh ha-Nevuchim 3:32, this would suggest that outlawing slavery outright would not have been accepted in the ancient world where it was ubiquitous, so regulation was the only possible approach.
See Rashi on Shemot 21:24, and Bava Kama 84a, which he cites there.

Mishpatim | פרשת משפטים

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