JTS Torah Commentary
Exodus 21:1-24:18, 30:11-16
February 17, 2007 / 29 Shevat 5767
This week's commentary was written by Rabbi David Hoffman, Senior Rabbinic Fellow, JTS
Our parashah this week is called "Mishpatim" or laws. So many commandments, one after the other — one is almost overwhelmed by law! When push comes to shove, what are all these laws really about? What are they trying to do or create?
Arguably, the pivotal moment in the Torah is God's liberation of the Israelites from the bondage of Egypt. It was this act that established God's claim on the behavior of the Israelite community. As God consistently reminds the Israelites, "I am the Lord your God who freed you from the land of Egypt," and the overriding implication of this statement is, "You shall faithfully observe all My Laws and all My rules" (Leviticus 19:36–37).
God's liberation of the Israelites had further implications. It served as the formative paradigm for the construction of an equitable vision of society.
One command in this week's parashah stands out for me. It expresses the larger social vision that, I believe, all the commandments of the Torah must serve: "Do not oppress the stranger, for you know the feelings of a stranger since you yourselves were strangers in the land of Egypt" (Exodus 23:9).
With this command God tells the Israelites, "You too know what it is like to be powerless — a stranger, at the mercy of the powerful, and this experience must cultivate within you a special sensitivity." The "mishpatim," the laws of our tradition, are there to create people and communities that are deeply sensitive to the experience of those without power and the disenfranchised.
This vision is manifested in a unique way in our parashah, without parallel in any Ancient Near Eastern law codes.
The law of Lex Talionis is presented in chapter twenty–one. Biblical law stipulates that if a person inflicts physical damage on another human being, the victim is entitled to restitution. Based on the language and context of this law, Biblical scholars believe that the principle — "An eye for an eye, a tooth for tooth" — (Talion) — mandated monetary compensation for bodily injury and did not call for literal physical retribution in retaliation for the physical injury suffered. As Professors Moshe Greenberg, Tikvah Frymer–Kensky, and Nahum Sarna have all observed, the Torah's articulation of Talion sought to limit retaliation to the exact measure of the injury and to reject the larger Near Eastern practice of vicarious punishment against family members. They also present extended arguments against a literal understanding of Talion and instead argue for an understanding of Talion as monetary reparation.
Most importantly for our discussion, Tikvah Frymer–Kensky, in her study on this law in the context of Ancient Near Eastern literature, observes that while the laws of Hammurabi distinguish between the social classes for the application of the law of Talion, the Pentateuch does not. Frymer–Kensky elaborates: "The laws of Hammurabi distinguish between the social classes of awilum and muskenum: physical attacks against the awilum are treated as crimes, while attacks against the muskenum (whose exact status is still unclear) are still treated as torts (lesser offenses). While in the Bible, where there is no class distinction among free men, all physical assaults are treated as crimes." (See Tikvah Frymer–Kensky, "Tit for Tat: The Principle of Equal Retribution in Near Eastern and Biblical Law," BA 43: 230–234, p. 233.) In biblical law, slaves, not only free Israelites, are entitled to monetary compensation for bodily damage inflicted by their masters. (See Exodus 21:26–27.) Sarna claims that this law is "without parallel in other ancient Near Eastern legislation" in its commitment to equal justice for all citizens. (See Sarna, JPS Torah Commentary: Exodus, p. 127.)
The general principle of the equality of all in the eyes of the court, stranger and citizen alike, is made explicit in the iteration of the law of Talion in Leviticus 24:17–22:
If anyone kills any human being, he shall be put to death. One who kills a beast shall make restitution for it: life for life. If anyone maims his fellow, as he has done so shall it be done to him: fracture for fracture, eye for eye, tooth for tooth. The injury he inflicted on another shall be inflicted on him. One who kills a beast shall make restitution for it; but one who kills a human being shall be put to death. You shall have one law for stranger and citizen alike: for I the Lord am your God.
You shall have one law —"mishpat echad, " for the powerful, the poor, the Israelite, the non–Israelite, the stranger, and the citizen. This is the Torah's social vision. This is the world that all the laws of Parashat Mishpatim seek to create.
Rabbi David Hoffman
This commentary is written in memory of my Grandfather Victor Hoffman, z"l.