Mishpatim (Aggadah)

For more teachings on the parashah, see the archives to this blog at February 2006, 2008 and 2009.

“Laws Precede All Mitzvot”

Two passages from Mekhilta expounding the opening verse of this week’s parasha, focus on the significance of the legal structure in general:

“And these are the laws…” (Exod 21:1). It is written, “that your nakedness should not be exposed thereupon”… [and immediately thereafter] “And these are the laws that you should place before them” (Exod 20:23-21:1). We learn that the Sanhedrin is placed by the side of the altar. And even though there is no proof of this matter, there is a hint of the matter, as is said, ”And Joab fled, and he took hold of the horns of the altar” (1 Kings 2:28).

The placing of the Sanhedrin next to the altar is meant, first of all, in the literal sense: during Second Temple times, the seat of the Sanhedrin was located in the Lishkat ha-Gazit, the “Chamber of Hewn Stone”—one of the rooms surrounding the Temple courtyard and the altar itself. (The Sanhedrin was, of course, the High Court of the entire Jewish people, consisting of 71 sages: both the final court of appeals and the ultimate source of both exegetical and legislative authority, which at times issued gezerot and, edicts and regulations; in addition, there was a system of lower-level courts, of 23 or 3 judges.)

The reference to the verse about Joab is puzzling: when Solomon’s men set out to kill him, fulfilling David’s deathbed orders, he took hold of the altar in the “tent of the Lord,” evidently believing that the holy place somehow granted him immunity from being executed. But, as becomes clear from the continuation of the story, this was not the case (based on a concept rooted in a verse in our own portion: “If a man plots to kill his fellow with guile, you shall take him from my altar to be killed”—Exod 21:14) In Judaism, holy places do not carry any aura of sanctity that cancels the equitable rule of justice; on the contrary, as we shall see below, the two complement one another. (In Christianity there is a certain concept known as “Sanctuary”: that a criminal may seek protection in a church. During the ‘60s, some of us anti-war radicals tried to implement this idea by harboring draft-resisters and anti-war AWOL’s in churches and elsewhere. But even in Christianity this idea was honored in the breach, as witnessed by the murder of Archbishop Thomas Becket at the altar of his own Canterbury Cathedral by King Henry II’s soldiers in 1170.)

But more important, of course, is the religious meaning of this proximity. What is the connection between the function of the courts, which adjudicate disputes between human beings, and the altar, the focus of religious worship? Ginsburg’s Yalkut Yehudah, interpreting both this passage and the next, says that: just as the function of the altar is to make peace between man and God, serving as the place where man makes peace with God—meaning: expiation, atonement for sin, restoration of the harmony that existed between man and God prior to man’s transgression—so too does the court play a vital social, and ultimately sacred function, by bringing about peace between man and his fellow:

“And these are the laws.…” Rabbi Shimon said: Why did they see fit that the laws should precede every other mitzvah in the Torah? When there is an [outstanding] judgment between man and his fellow, there is rivalry between them. Once the judgment has been adjudicated, peace is made between them. And thus does Yitro say: “If you do this thing… then all this people shall go to its place in peace” (Exod 18:23).

Dinim “precedes every other mitzvah in the Torah.” The term is used here in the sense in which it is used att he beginning of Rambam’s Hilkhot Sanhedrin: “to appoint judges [and, in Eretz Yisrael, courts] in every city and in every district”—that is, to set up a legal system. Dinim precedes every other mitzvah in at least two senses. First, that in this portion, immediately after the Revelation at Sinai, there begins the more specific, particular presentation of the laws of Torah. These are concerned, not with cult and ceremony, nor yet with do’s and don’ts pertaining to diet, sex life, and other aspects of individual behavior, but with laws relating to inter-personal behavior and their adjudication by a system of courts and judges—damages, bailiffs, wages and labor relations, etc.

Secondly, dinim occupy a unique position among the Seven Noachide laws pertaining to all human beings as such. Whereas the other six commandments are all negative proscriptions, and pertain to acts performed by the individual—idolatrous worship, bloodshed, licentious sexual acts, theft, blaspheming the Divine name, and cruelty to other living things, viz. ripping a limb off al of a living creature to eat—only denim involves a positive injunction, and a social institution; namely, that every human society must set up a system to judge and enforce its laws.

What, then, is so basic about the function of courts? The adjudication of differences between people is perhaps the most basic function of organized human society, to assure that “each one not eat his fellow alive.” The alternative is a state of nature, a constant struggle of all against all, based upon raw strength, not one based upon cooperation or moral suasion. (This option is perhaps represented symbolically, in the opening chapters of the Torah, by the Generation of the Flood and by the people of Sodom). Hence, an orderly society, with some sort of final authority, is a basic requirement of human civilization.

True, some thinkers (most notably Jean Jacques Rousseau with his idea of the “noble savage”—revived in modern times in a variety of settings, from Russian anarchists of the 1890’s through the ‘60s hippies) have suggested as an alternative the anarchist philosophy, which asserts that, in an atmosphere of love, freedom, mutual respect, absence of coercion, and equitable distribution of (hopefully, abundant) resources, all human conflicts will work themselves out amicably; that coercion and authority are themselves the root of all evil and hostility. This approach has, to date, failed to prove itself; in any event, it is clearly not accepted by the Torah.

Our aggadah sees the function of law to bring about peace between man and his fellow. To be precise, one might say that the courts serve a dual function: on the one hand, to execute justice—to assure that one who has been cheated, robbed, exploited, etc. may receive recompense and restoration of his loss. But second, to make peace between rival parties, the theory being that, once justice has been done by the court, both sides will accept the judgment, leave whatever rancor has accumulated over the course of the dispute at the courthouse door, and leave as friends and neighbors. In my experience, human beings being what they are, thus picture is rather idealized, if not naïve.

But perhaps the failure of law to restore harmony between warring parties is in part a function of the role and conduct of law in modern society. The dominant model as that of the adversary system, based on competition and rivalry; the function of the highly-trained and well-paid lawyers on each side is not the pursuit of justice and truth, but winning. It is unclear what even the most well-intentioned judges can do to change this situation.