Bar-Ilan University 's Parashat Hashavua Study Center

Parashat Mishpatim 5765/ February 1, 2005

Lectures on the weekly Torah reading by the faculty of Bar-Ilan University in Ramat Gan , Israel . A project of the Faculty of Jewish Studies, Paul and Helene Shulman Basic Jewish Studies Center, and the Office of the Campus Rabbi. Published on the Internet under the sponsorship of Bar-Ilan University 's International Center for Jewish Identity. Prepared for Internet Publication by the Computer Center Staff at Bar-Ilan University . Inquiries and comments to: Dr. Isaac Gottlieb, Department of Bible, gottlii@mail.biu.ac.il

 

Between Law and Law

Yair Hass

Elad 

 

Moshe Greenberg, in his classic article “Some Postulates of Biblical Criminal Law,” [1] claimed that the differences between criminal law in the Torah and criminal law in the other law codes known to us from the surrounding cultures of ancient Israel are founded on a revolutionary change in the ethical and spiritual perception of man. For example, Greenberg points to the punishment established by the Torah for a person who kills another human being-- the death sentence-- as opposed to the punishment in Hittite law, which requires the murderer to give over to the family of the murdered person a number of souls of equal status to that of the victim. [2]   There is a revolutionary change in the view of the value of a human being: In Hittite law, he is perceived in terms of his value to society; in the Torah, all men are of absolute and unequalled value insofar as they are created in the image of G-d.

A precise and adequate formulation of the jural postulate underlying the biblical law of homicide is found in Genesis 9:5f: “For you lifeblood I shall require a reckoning; of every beast shall I require it …. Whoever sheds the blood of a man, by man shall his blood be shed; for in the image of G-d was man made.” … The meaning of the passage is clear enough: that humans were made in the image of G-d … is expressive of the peculiar and supreme worth of mankind. [3]

Interestingly, hundreds of years before Moshe Greenberg another great scholar – Don Isaac Abarbanel (1437-1508) – observed a similar distinction in his analysis of the differences between the laws of the Torah and the laws of other peoples.   Abarbanel made this distinction in grappling with the question why the Torah includes rational commandments.

No other commentator could be said to be more concerned for the integrity of the Torah than Abarbanel, both in terms of content and style, [4] and the very appearance of rational commandments in the Torah posed for him a philosophical challenge of the first degree.  Commandments that human intelligence can deduce have no need to be written in the Torah and would appear to be superfluous.  But superfluous elements in the Torah contradict the notion of the Torah’s integrity as the word of G-d, so the exegete must explain why nonetheless it was necessary for these commandments to be written down.

Abarbanel first relates to this subject in his commentary on the last five commandments of the Decalogue, which pertain to relations with one’s fellow person:

Indeed, all five of the last commandments are expressed in the negative, since they are things that the intellect can deduce, and most of them were commanded of the descendants of Noah, and man as a human being is obliged to observe them.  Indeed, the positive statement, which is righteousness and loving one’s fellow like oneself, brings greater perfection to the human being.   The Holy One, blessed be He, sufficed with warning not to do that which is unbefitting.

This does not fully solve the difficulty of the last five commandments, since the Torah did not have to mention them at all (even in the negative) insofar as what they command can be deduced by the intellect.  Therefore, in his preface to Parashat Mishpatim Abarbanel explains that there nevertheless are significant differences between divine laws and human laws, and these differences explain why these commandments were included in the Torah:

Divine laws differ from the rest of the laws of the descendants of Noah and the other nations in two enormous ways:   first, by the nature of the commandments themselves, the divine ones including several things, be it individual laws or several consequences following from the commandments, which is not the case with the laws of other nations.  Second, they differ in terms of reward and punishment given to a person who observes the divine laws given by the Lord of the Universe, blessed be His name.  In this way they are unlike humanly agreed laws, for the latter are but to establish a properly run state and society, and they carry with them neither reward nor punishment from the blessed Lord for observing, but only the benefit that they themselves bring.

These remarks appear in Abarbanel’s discussion of the Ten Commandments, which he believes included all the rest of the commandments.  His commentary on Exodus 22:22-23 implies that the Ten Commandments subsume, in one way or another, additional divine laws:

The commandment, “You shall not tolerate [lit.“let live] a sorceress,” also applies to sorcerers.  And the commandments, “You shall not wrong a stranger” and “You shall not ill-treat any widow or orphan,” also apply to all the rest of one’s fellow Israelites, but Scriptures wrote in terms of the present.  All this is to inform us of the generality of the Commandments as divine laws.

Yet this still does not suffice, since Abarbanel does not succeed in applying the principle that “Scriptures wrote in terms of the present”(dibber hakatuv ba-hove), meaning that the Torah gave examples in contemporary terms, to every one of the laws in Parashat Mishpatim. Therefore in the vast majority of these commandments the problem of superfluity remains. [5]   Hence Abarbanel comments on almost every single commandment, showing how the divine wisdom that can be seen in it is superior to the human wisdom underlying the laws of other nations.

In his explanations we can discern two fundamental approaches which appear at first glance to be contradictory.  One approach sees the laws of the Torah as a pure reflection of perfect divine wisdom, in contrast to human laws which reflect limited and imperfect human wisdom.   This is an approach which is consonant with Abarbanel’s well-known skepticism about the ability of human intelligence to arrive at true conclusions. [6] Therefore the justification for rational commandments in the Torah is that, although they are rational, the intelligence of human beings would not be able to deduce them in actual practice.  This is illustrated by his commentary on the verse, “But if what he stole – whether ox or ass or sheep – is found alive in his possession, he shall pay double” (Ex. 22:3):

Other peoples and nationalities either assumed according to their mores [7] that one who stole an ox or a sheep or other moveable property should be killed and hanged on a tree, or assumed that his ears should be cut off on the first offense and that he should be put to death on the second.  Those who were more lenient in their sentencing required the thief to pay seven-fold... But the punishments of a Jewish court are not to be suspected, for the ways of the Lord are straight, and a person who steals property is punished only in property, and in proportion to what was stolen, as I have explained. [8]   And the laws of the Torah are all founded on what is true and proper.

In contrast to this explanation, elsewhere Abarbanel views the laws of the Torah as an expression not of truth but of mercy.  For example, Abarbanel sums up his commentary on the laws concerning a Hebrew maidservant (Ex. 21:20) as follows:

Observe how much of the blessed Lord’s mercy was extended to the daughters of Israel in this law, that even in servitude loving kindness and mercy be shown them, and that none of this was in the commandments of the descendants of Noah nor in the laws of other nations in their individual lands.

The most instructive explanation, however, which seems to combine the two, is in his commentary on the verse, “When a man strikes his slave, male or female, with a rod, and he dies there and then, he must be avenged” (Ex. 21:20):

It contains both divine wisdom and compassion ... for by the laws of other peoples a master is not punished for doing such a thing to his slaves, insofar as they say:   he is his possession.   But the Lord! – His deeds are perfect, Yea, all His ways are just; and He gave every person His law, male slave and master, female slave and mistress, alike.

Abarbanel, who was not familiar with the Code of Hammurabi or Eshnunna, anticipated the conclusion reached by Moshe Greenberg.  Differences in laws concerning human life stem from differences in the perception of the human being.  In contrast to places in the world where a person is measured according to his or her value to the society or to his or her lord, the Torah emphasizes that even a slave, whose entire duty is to serve his master, has absolute and unconditional value given him by the Creator of the Universe.

This is a very advanced distinction to be made by a medieval scholar, since what follows from it is that there is no such thing as pure logic or pure rationality; in law as well everything depends on the underlying assumptions. Different assumptions yield different conclusions. [9]

Perhaps this distinction can explain the two approaches that we have seen in Abarbanel’s explanations of the Torah laws, based on reason and on mercy.  Both are equally rational although they follow from different basic assumptions.  A thief ought to be treated according to the letter of the law (but no more), since criminals must receive as they sought to do to others in order that they not repeat their actions.  In such cases there is no room for mercy, since mercy towards a thief means a worse plight for his future victims.  In contrast, regarding a Hebrew maidservant, mercy does not undermine truth, rather it is actually required by the very fact that the maidservant is a person created in the image of G-d.  When, instead of proceeding from the assumption made in the laws of other peoples, that the value of a person is measured according to their usefulness, we proceed from the assumption that the value of every person is inestimable, insofar as everyone is created in the image of   G-d, then according to Abarbanel mercy is justice itself, in line with the injunction, “Love truth and peace.”

 



[1] Yehezkel Kaufmann Jubilee Volume, 1960, 5-28. See further, “More Reflections on Biblical Criminal Law,” Scripta Hierosolymitana 31(1986), 1-17. The original article also appears in M. Greenberg, Studies in the Bible and Jewish Thought, Philadelphia: 1995, pp. 25-41.

[2] Kaufmann, p. 14; Studies, p. 30.

[3] Kaufmann, p. 15; Studies, p. 31.

[4] See Meir Waxman, “Don Isaac Abarbanel,” Sefer ha-Shanah le-Yehudei America III (1938), 76; and especially chapter 1 of my master’s thesis:   Yair Hass, Stiyot Methodologiyot shel Abarbanel be-Perusho la-Torah le-Or Tefisato et Mahut ha-Torah (M.A. Thesis, Bar Ilan 2001).

[5] Apparently Abarbanel did not think that the reward given someone who obeys the laws of the Torah is sufficient to justify their being written down in the Torah, since this advantage does not concern their essence.

[6] Abarbanel clarifies this position of his at length in his commentary on I Kings 3:12 (Perush le-Nevi’im Rishonim, Torah ve-Da’at edition, p. 466ff.).

[7] It is unclear what laws Abarbanel was referring to here.  Probably he was speaking of laws in practice in various places in his own time, although we cannot exclude the possibility that he had read in the writings of Josephus and other ancient authors about laws and practices in the ancient world.

[8] Above, in his commentary on 21:37 Abarbanel explains that the double payment means “the one that he stole, plus one of his own.”

[9] Perhaps it need be said that with this distinction Abarbanel put the Middle Ages behind him, marching forward towards the Renaissance, where the dominant view was that man himself creates his world and the truth depends on his own specific point of view.