Civil law, criminal law, religious law – the Torah does not make such distinctions. We do. It is helpful to us as heirs of both Torah and Western civilization to categorize. For our Israelite forbears it was all one piece: Torah.
The word “Torah” does not mean law. Its derivation is from a root word meaning “teaching,” but it is understood as the kind of teaching that is revealed by a divine source. Hence, one of my teachers used to say, “Let’s just understand the word to mean ‘revelation,'” and then just use the Hebrew, “Torah.”
“Mitzvah,” contrary to popular colloquial usage, does not mean “a good deed.” Though some of the mitzvot are also good deeds, we use the term “ma-asim tovim” to mean – strictly speaking – good deeds. The term “mitzvah” means, quite simply, a commandment.
According to Sefer Ha-Chinuch, there are 53 mitzvot in Parshat Mishpatim. There are 23 positive and 30 negative commandments in this parasha. They are diverse. They include civil, criminal, and religious laws and commandments.
So, what are mishpatim? They are laws. The word itself is roughly analogous to the English term “ordinances,” but let’s understand mishpatim to mean “laws.”
In an article in Jan. 17’s issue of The New Yorker, entitled “The Commandments,” and subtitled, “The Constitution and its Worshippers,” Jill Lepore describes the battle over understanding and interpreting the Constitution of the United States. The parallels to understanding and interpreting the meaning of the Torah and its laws would strike many of us who are students of Torah. The parallels run even down to the fact that the Constitution was originally written by hand on parchment.
Parallel lines, of course, do not meet. Jewish tradition views the Torah as a divinely revealed document. Even religious liberals would see it as a divinely inspired document. But the Constitution, while revered, is not revealed. It is a creation of human minds. Yet, despite these differences regarding the respective origins, there are some striking parallels with regard to understanding and interpretation.
Of course, Jewish tradition holds that there was a two-fold revelation at Sinai: Torah she-bich-tav, “the written Torah,” and Torah she-b’al peh, the oral Torah. The latter is what later came to be written down as the Talmud, composed of Mishnah and Gemara. We need it to understand the meaning of so many of the Torah’s laws and teachings, and to accommodate to new developments and circumstances as they arise in everyday life and in human progress. We want to make sure that we honor the original intent of the Torah.
And that’s the rub in the contemporary battle over the Constitution. What was the original intent of the Constitution’s framers? When confronted with new or changed circumstances unforeseen by the framers, how do we interpret the Constitution in such a way as to honor the original intent?
When poring over the rulings of the poskim – those legal deciders in matters of halacha – we will encounter some who are machmir (“strict” or “stringent”) and some who are meikel (“lenient”) in their rulings. Sometimes it will depend on what they are asked to decide. The same Posek might be machmir on one matter and meikel on another. But in all cases each will state his reasoning, and conclude as to why his decision is in consonance with the Torah.
In this particular portion, Mishpatim, we encounter the lex talionis, the well-known “life for life, eye for eye, tooth for tooth, etc.” clause. Now just how are we to understand this? Were we meant to take this literally? Is there such a thing among our poskei din as an “originalist” such as we have with respect to understanding and applying the Constitution? Hardly! For, whether machmir or meikel, our poskim understood the need for examining the oral Torah and the written Torah in tandem in order to understand both the letter and the spirit of the law. And, when we consult the well-known passage in Bava Kamma 84a, we learn that this passage from Mishpatim (Exodus 21:23-25) was not to be taken literally. Rather, it had to do with assessing pecuniary compensation deemed appropriate for each kind of loss. The only exception would have been “life for life” in the matter of the capital crime of first degree murder.
Lepore’s article points out that those who call themselves “originalists” with regard to the Constitution ought not to lose sight of the fact that, when the Constitution was originally ratified, and even when the first 10 amendments – collectively known as the Bill of Rights – were ratified, women could not vote, slavery was legal, and the country was new with only 13 states. Those who composed “We the people” knew nothing of planes, trains, and automobiles, let alone radio, TV, iPods, and the Internet. How original can one get in interpreting? There are amendments to consider, and Supreme Court decisions to factor.
James Madison, Lepore points out, said that the Constitution is “of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed… the people themselves.” Madison must have understood the lesson of Mishpatim. For, when Moses repeated all the laws and commandments given by the Eternal, the people responded, Na-aseh v’Nishma, “All that the Eternal has spoken, we will faithfully do. (Exodus 24:7)”
Felix Frankfurter once wrote that the Constitution “is most significantly not a document but a stream of history.” To parallel that notion, I would say that the Torah, too, is not so much a document as it is a stream of revelation flowing to us down through the ages, teaching us how to live our lives, pursue justice, love mercy, and walk humbly with our God.