Parashat Mishpatim (5760)

With God’s help, on the eve of the holy Sabbath of Parashat Mishpatim, 5760

‘Hebrew Law’ or ‘Torah Law’

In our Torah portion, the Torah describes the laws of civil jurisprudence, that is, a person’s legal obligations toward

his fellow. The legal system includes obligations toward slaves, prohibitions of theft, causing damage,

and the like, together with the penalties imposed on one who transgresses all of these. This is the field that is today called

in law faculties ‘Hebrew Law.’

A legal system is usually perceived as a system arising from human agreement, whose purpose is to order life

among people in a proper way. In light of this, it is often difficult to understand the exposition of the Sages at the beginning of the portion,

which expresses the basic premise of the Torah’s entire legal outlook: “These are the ordinances that you shall set before them” (Exodus 21:1)

— ‘before them’ and not before lay judges (=those not expert in Torah law), ‘before them’ and not before

idolaters (=gentiles). Rashi adds that even in a situation in which there are gentiles who judge according to the laws of

the Torah, it is forbidden to come before them for judgment.

If indeed the entire purpose of the legal system is only to order life among human beings properly,

then ostensibly the Torah should only have insisted that judgment be rendered according to the legal system that the Torah

regards as correct, and what difference should it make who the judge is who implements it. Beyond that, proper

ordering of life can also be achieved through other legal systems. Among the commandments

that the Torah imposes upon gentiles is also the command to establish legal systems for the proper ordering of

their lives, and these certainly need not operate according to Torah law. If so, proper social order

can be achieved, as stated, even without ‘Torah Law.’

It seems that the foundation for understanding this problem lies in the words of Rashi in his first comment on our Torah portion (on Exodus 21:1):

Wherever ‘these’ is stated, it separates from what came before [that is, these and not the preceding matters];

whereas ‘and these’ adds to what came before [the preceding matters as well as these]: just as the former were from Sinai, so too these

are from Sinai. And why was the section dealing with laws placed adjacent to the section dealing with the altar? To tell you that you should place the Sanhedrin beside

the altar [that is, in the Temple courtyard].

In these words, Rashi lays down the foundation of the Torah’s legal system: the system of the Torah’s

civil and criminal laws is like all the other commandments of the Torah. It was given at Mount Sinai together with

the Torah, it is binding like any other commandment, and it has religious significance and not merely civil significance. Just as

taking the lulav, donning phylacteries, offering sacrifices, and the like are commandments of God, so too tort compensation, the fulfillment of contracts,

or the modes of acquiring slaves are all commandments of God that we are obligated to observe not as a means but as an end

in itself, and consequently the Sanhedrin sits beside the altar. This is not a system of ‘law’ practiced by the

‘Hebrew’ nation; it is ‘Torah Law,’ which is an obligatory part of the system of commandments.

If a person can arouse within himself feeling, or religious experience, even without taking the lulav on Sukkot, or

alternatively by taking the lulav on Passover, he still cannot fulfill the obligation of the commandment in those ways.

In precisely the same way, we will not try to achieve social order (even if in practice it is indeed possible

to do so) by means that do not accord with what the Torah commands. The reason is that just as the commandments

have various and more elevated rationales beyond what we perceive, so too in the laws of the Torah

(and in obligations toward others) there are religious layers, and not only civil ones.

From here it is clear why the people of Israel in every generation tried, to the best of their ability, to uphold

their right to administer an independent legal system, even in places where civil government was orderly and social order

was proper. For exactly the same reason, in the State of Israel today as well, even if we identify with its existence

and try to be as loyal citizens as possible, and even if we think that the Israeli legal system

does indeed order life properly, there is no place for using legal systems that serve as alternatives to the Torah

(certainly not in places where they stand in contradiction to it). This is not a dispute about the proper

way to order life, but a religious obligation.

There is indeed a religious dispute regarding the proper attitude toward the legal system in the State of Israel.[1] It is clear

as well that one must distinguish among the different parts of the legal system, and this is not the place to elaborate. However,

in the background one must remember that even if adjudication is conducted according to the Torah, there is still a problem in appearing for judgment

before a judge who is not qualified according to Jewish law (=a lay judge). I do not intend here to issue a legal ruling on

this matter, since there are circumstances in which this is indeed required, and at times there is no choice. However,

the principled aspect of the matter should be clarified.

It is important to note that the principle that ‘the law of the kingdom is law,’ which is so often brandished by those who advocate a positive

attitude toward the legal system, is not binding from the standpoint of Jewish law where civil law contradicts the laws of the Torah, and there are

opinions that it does not apply at all in the Land of Israel. A broader discussion of this issue requires, among other things,

also addressing the concept of ‘communal enactments’ (=decisions of a community regarding matters that bind

its members). With respect to this I will mention only that there is a decisive difference between a situation

in which a certain community accepts upon itself enactments beyond the obligations imposed by Jewish law and the Torah, and a situation in which the people of Israel accept upon

themselves a comprehensive legal system as an alternative to the Torah system. This is a desecration of God’s name par excellence,

a determination that in my opinion certainly stands up to the test of the ‘reasonable person’ (the truly reasonable one!!).

“Restore our judges as at first, and our counselors as in the beginning” (from the Amidah; based on Isaiah 1:26).

Peaceful Sabbath

It may be deposited for respectful disposal in any synagogue or academy of Torah study. Comments and responses will be gladly received.

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[1] For those familiar with the situation on this issue, the division of opinion is generally between religious lawyers

who, for some reason (!), require comprehensive use of the civil legal system, and rabbis

who reject it, at least in its comprehensive sense. Let each person decide whom he regards as authorized to issue

legal rulings on this subject.

Bitton23.doc