Mishpatim- What existed before Torah law?*

"If an ox, when it is walking along the street, gored a man to death . . . "
"If a man struck another man's wife, and caused her to have a miscarriage . . . "
"If a man stole . . . he shall make manifold restitution . . . "

Sound familiar? Feel like you've scanned these verses during Leining or wrestled with their expansive meanings during morning Seder?

Chances are that you're wrong. The first comes from Hammurabi's Code, the second quotes Middle Assyrian law, and the third stems from Hittite passages. In fact, significant swaths of the Torah's legal sections are strikingly similar to pagan law books of the Ancient Near East. These passages direct our attention to the legal culture contemporary to Matan Torah, to the ethics and values that the Torah saw fit to change. They remind us to ask: what existed before Halakha and what is Halakha adding to the world? If I stood at Har Sinai, which parts of Parshat Mishpatim would seem particularly surprising?

An equivalent discussion, but in the context of Sefer Bereishit, is found in Nahum M. Sarna's Understanding Genesis. By providing the popular theology prevalent before Har Sinai, Sarna draws forth the power and hiddush of "Bereishit Bara Elohim." When you realize that our creation story contains references to mythic Pagan forces (Yam, Tanin, Tohu vaVohu, etc.), place yourself in the shoes of an ancient Israelite people who were familiar with that culture. Suddenly, you learn that these mighty "forces" are mere creations of an utterly omnipotent God. You see those forces through the lens of a meticulously structured Perek, where each "chaotic" entity is put in its proper place in God's world of smooth and natural order. The frightening, imposing, people-smashing and crop-ruining picture of the planet is replaced by a universe that, over and over again, is "very good." The pagan perception of a cruel and uncontrollable existence is, to this day, replaced by the order and goodness of the Jewish/Modernist world-view.

The method applied to Biblical narrative holds true for Biblical law. The generation of the Exodus grew up in a particular legal context. Standing at Har Sinai, the similarities found in Halakhic passage only emphasize dramatic differences. Some of these deviations are seen by concluding our original, non-Jewish citations:

"If an ox, when it is walking along the street, gored a man to death, that case is not subject to claim. "

"If a man struck another man's wife, and caused her to have a miscarriage, they shall treat the wife of the man who caused her to have a miscarriage as he treated her; [the striker] shall compensate with the life [of his child]. "

"If a man stole . . . if it belonged to the church or if belonged to the state, he shall make thirty-fold restitution; if it belonged to a private citizen, he shall make good ten-fold. If the thief does not have . . . he shall be put to death."

The Torah rules, in direct contrast, that: 1) even in cases of "accidental" murder, the loss of a human life demands legal attention. 2) a human life is never sacrificed for a non-living embryo**, certainly not the life of an innocent child. 3) one who steals must pay back a more understandable fee of two-fold restitution, with no distinction between state and private property.

These and other instances contribute to an understanding of the Torah's legal "hiddushim" (novel ideas). Apart from receiving the particular Halakhot found in Parshat Mishpatim, the Jewish people were introduced to a "spirit of Halakha" emanating throughout. Some (but admittedly, not all) of our most central conceptions of justice may seem ordinary enough today, but were quite the "revelation" over three thousand years ago:

1. The central value of human life. No economic gift can erase the guilt of murder and no economic crime is ever punished with death. (See Moshe Greenberg's "The Biblical Grounding of Human Value.")
2. The equality of all individuals before the law. Whether young or old, poor or powerful, Cohen or Yisrael, man or woman, all property and life has equal value. (Granted, there are distinctions in the Torah between Jews and non-Jews.)
3. No unusual or "creative" punishments. (The four methods of execution in the Torah are delegated specific roles in specific cases. The grisly details and "creativity" of ANE punishment were, thankfully, not detailed in this Dvar Torah.)
4. A sense that apart from injuring a particular party, one's malfeasance is a sin "against God", which is morally reprehensible in and of itself. A husband has no right to pardon the murderer of his wife, nor a father the killer of his son.
5. No collective or re-directed punishment. A man's child, spouse, or slave is never punished for his sins. (God maintains the right to punish families and nations for the sins of its individuals. See 20:4. However, it remains solely in the hands of Divine judgment.)

QuickNotes for the Shabbos Table

-Many Pasukim in Parshat Mishpatim mirror legal codes of the Ancient Near East.
-A similar situation is found in Parshat Bereishit, where pagan creations myths are referenced.
-Just as Parshat Bereishit twists those references around, re-casting them through the lens of Torah theology, Mishpatim reverses course with those legal codes, setting new standards for justice, ethics, and morality.
- In particular, the Torah advocates the central value of human life, the concept of Bein Adam l'Haveiro crimes as a sin against God, the equality of all individuals before the law, the responsibility of those found guilty- which can never be re-directed or ignored, and the need for respectful and orderly forms of punishment. These values are absent from neighboring codes.

*Much of this Dvar Torah's content comes from materials studied in Dr. Moshe J. Bernstein's Intro to the Bible course.
** The Torah's position on abortion - an obviously sensitive topic - is by no means under discussion here.