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Parashat Mishpatim 5758-1998
"These are the rules" (Ex. 21:1) -- On Divine Law
Dr. Meir Gruzman
Department of Talmud
After the Ten Commandments were given at Mount Sinai, Moses was instructed in the remaining commandments, so that he could transmit them to the people. From this week's reading we see that pride of place after the Ten Commandments is given to the legal system, its organization, procedures, status and laws; the remaining commandments are only given thereafter, in the readings of the next few weeks.
In his famous prayer preceding the pact made in Jerusalem, Nehemiah points out the preferential place of law: "You came down on Mount Sinai and spoke to them from heaven; You gave them right rules and true teachings, good laws and commandments" (9:13). It is logical to give justice preference over other commandments, as Rabbi Simeon explains: "Why were laws (civil law--dinin) given prior to all the commandments in the Torah? Because when two people have a dispute, there is competition between them; but when the dispute is resolved, peace is made between them" (Mekhilta de-Rabbi Yishmael, beginning of Mishpatim).
Presumably by "competition" Rabbi Simeon intended to include all the discord that exists in society over money, honor, jealousy, etc. When such tension exists and there is no peace between people, one cannot speak of keeping the rest of the commandments. When discord is eliminated and peace is made to reign in society, one can expect fulfillment of any sort of commandment. Hence civil law --mishpatim-- has pride of place, and therefore it begins this week's reading.
Why does justice, its laws and procedures, have to be divinely given from heaven? Can it not be the fruit of human creativity, stemming from human consensus and pure reason? Consider what Rabbenu Jacob Anatoly (son-in-law of R. Samuel ibn Tibbon) wrote in Malmad le-Talmidim, parshat Noah, on the laws of the Noahides ( bene Noah): "It is well known that every nation has agreed laws, whether from a person who claims to be G-d's emissary, whether from a king or judge of the nation: all the descendants of Noah are commanded in this regard, to act according to the laws of their people, for law exists to bring harmony into the world." If this is possible among the descendants of Noah, why not also among the people of Israel? The following words of the prophet Jeremiah provide the answer:
Thus said the Lord:
Let not the wise man glory in his wisdom;
Let not the strong man glory in his strength;
Let not the rich man glory in his riches.
But only in this should one glory:
In his earnest devotion to Me.
For I the Lord act with kindness,
Justice, and equity in the world;
For in these I delight
--declared the Lord.
We are not interested here in the first part of the prophet's list -- the wise, strong or rich man. From the second half, however, we may conclude that whoever makes divine justice his concern shows "earnest devotion" to G-d, and that G-d wants His people to follow His ways regarding kindness, justice and equity. In other words, the commandments given in this week's reading, dealing with the legal system, not only devolve from heaven and are a divine imperative, but are also an expression of earnest devotion to G-d -- of paramount importance and the only thing in which a person should glory.
Moreover, from Psalms 147:19, "He issued His commands to Jacob, His statutes and rules to Israel," we learn that the legal system given the Jewish people is the same system that serves G-d himself. This is elaborated in the Midrash: "A human being instructs others what to do, but himself does nothing; not so the Holy One, blessed be He, for what He does, he tells Israel to do" (Exodus Rabbah, 30.6). In this light we can understand G-d's words to Abraham: "For I have singled him out, that he may instruct his children and his posterity to keep the way of the Lord by doing what is just and right" (Gen. 18:19). Adding "to keep the way of the Lord" before "doing what is just and right" indicates that G-d Himself has a certain personal system of justice which will be given to Abraham's progeny, in the hope that they shall remain steadfast to that way and safeguard it.
Indeed, later Moses is praised for implementing this hope and making it a reality. In his blessing to the tribe of Gad, delivered shortly before his passing, Moses refers to himself, saying, "He executed the Lord's judgments and His decisions for Israel" (Deut. 33:21). In other words, Moses applied the laws of divine justice among the people of Israel, bringing them a legal system from heaven.
Now we can understand the verse, "G-d stands in the divine assembly; among the divine beings He pronounces judgment" (Ps. 82:1), from another perspective. Usually, according to the plain sense of the text, this verse has been taken to refer to the Divine Presence in court in order to give backing and support to the judges, or to oversee their decisions and rulings, assuring that they be just, reasonable and balanced. In the light of the above, however, we may say that the Divine Presence in the court system has another, perhaps more central, object: to assist the judges in applying His justice and to see to it that divine justice be rendered.
This approach is also vested in Jehoshaphat's words to the judges upon their appointment, as described in II Chronicles 19:5-7:
He appointed judges in the land in all the fortified towns of Judah, in each and every town. He charged the judges: "Consider what you are doing, for you judge not on behalf of man, but on behalf of the Lord, and He is with you when you pass judgment. Now let the dread of the Lord be upon you; act with care, for there is no injustice or favoritism or bribe-taking with the Lord our G-d.
A double message lies in the words, "for you judge not on behalf of man, but on behalf of the Lord" and "He is with you when you pass judgment." Justice belongs to G-d, not man, i.e., the source of justice is divine; and G-d Himself is present at judgment, supervising to see that it be done properly and justly.
This enables us to understand why judges and courts are referred to as Elohim [G-d], as in "the owner of the house shall depose before G-d" (Ex. 22:7), "You shall not revile G-d" (Ex. 22:27), and elsewhere (see Sanhedrin 72a). Neither the judge nor the court are free to do with the legal system what they please; rather they are subject to divine justice and must use their breadth of understanding in each and every case to try to arrive at G-d's will in the given matter.
Now we can also appreciate Samuel's negative response to the people's demand, "Therefore appoint a king for us, to govern us like all other nations" (I Sam. 8:5). This demand is generally considered negatively because of the people's desire to have a king appointed "like all other nations." We (like some commentators) believe that these words, "like all other nations," do not refer to the king but to the legal system, the negative element stemming from the words "to govern us." The people were asking for a king who would introduce a new sort of justice among the people, the justice existing and accepted among other nations. This is what displeased Samuel. Indeed, implicit in G-d's response, "For it is not you that they have rejected; it is Me they have rejected as their king" (I Sam. 8:7), is the rejection of divine justice.
Doing away with divine justice essentially means putting an end to "knowing G-d" and banishing the Divine Presence from the courts and from all Israel. As Maimonides said, "Any judge who does not do true justice causes the Divine Presence to withdraw from Israel, ... likewise every judge who does true justice, even for one moment, is like one who sets right the entire world and causes the Divine Presence to dwell in Israel, as it is said, 'G-d stands in the divine assembly'" (Sanhedrin 23.9).