Our appreciation of the infinite majesty of the Torah is often limited by our own individual, cultural, intellectual, or even professional frame of reference. In a sense, just as “my thoughts are not your thoughts” (Is. 55:8), each individual may say to his fellow that his thoughts about Torah and his response to its demands and format are not the same as the other’s. Our tradition understands this in the recognition that “there are seventy aspects to the Torah.”
Within such an approach, we may properly use the parasha of Mishpatim to emphasize the greatness of the Torah in the technical field of the science of jurisprudence. Viewing the halachic content of this parasha through the prism of the Torah she-b’al peh, we can come to some appreciation of certain of the lasting contributions of Torah and Jewish law to the development of law and the legal structuring of society. In many of these areas, halacha has furnished the foundation for basic historical development of legal institutions. In some ways, the halacha remains substantially advanced of even the most “enlightened” society.
In the first instance, there is the matter of the basic style of approach of the law. The parasha of Mishpatim furnishes us with illustrations of two of the three classic formulations of legal directives. The three possibilities are: (1) the direct imperative of statutory law, (2) the case law development, and (3) the rule based upon the hypothetical case. This parasha furnishes extensive illustration of the direct command, involving statements of positive or negative commands. The murderer (Ex. 21:12), the witch or pervert (22:17-18), and the blasphemer (22:27) are all the subject of decisive and direct authoritarian commands.
The hypothetical formulation, most often introduced in the Torah by the Hebrew word ki, is introduced in Mishpatim in a large group of examples. It is this area of the law which sets forth the rules for the operation of human behavior in the wide range of optional possibilities, in the area of reshut, as distinguished from chova. Thus, there is no positive, direct command to acquire a Hebrew slave - but once having done so, the rules imposed upon such a relationship are set forth in detail. In fact, so much so is the case, that the Talmud summarized the extensive rules by noting that under Jewish law, he who acquires a Hebrew slave is as one who has acquired a master instead.
In a similar fashion, the Torah takes into account the possibility that human beings may sometimes behave in a manner hardly praiseworthy, but which nonetheless must be subject to regulation by the source of all legal authority - the Torah. Thus, for example, is tort law set forth in this parasha at considerable length. An understanding of the hypothetical nature of these commands is essential in order to avoid any misinterpretation of their ethical import. Thus, it is generally accepted and understood that the laws concerning battery (21:18), negligent keeping of an animal (21:28), or theft (21:37) are not intended to extol or recommend such behavior. Yet it is sometimes mistakenly assumed that the Torah urges upon us the institution of slavery (cf. 21:2). Both are equally introduced by ki - if you undertake such a course, the Torah tells us, certain results must follow. The readiness of Torah to focus upon the acts of a person who falls short of the idea - summarized in the concept that the “Torah was not given to angels, but to man” - is crucial for the translation of the Divine ethical ideal into pragmatic legal rules to be imposed upon social existence. In this understanding of the fact that man’s activities will not always reach the ideal that might be desired, the Torah effected a genuinely pervasive “rule of law” to cover all aspects of the human situation. In doing so, the Torah legislation is most attuned to the realities of human life. While Divine in source, it is human in application and content.
The third manner of formulation of law is that of the case approach. It is this approach which has become the core of the Anglo-American development and which is most familiar to the American public. The actual illustrations of this method in the Torah itself are limited - the cases of the Sabbath violator, the blasphemer, and the daughters of Zlofchad represent the full inventory. The list of cases where application of rules of law is reported is more extensive in the Prophets. In the Talmud, the approach is continued and developed, and those reports beginning with hahu gavrah (there was a man), or maaseh (an occurance) are all instances of what could be called case law reports. In the written Torah itself, the general approach, the requirements for the establishment of a judicial hierarchy, and frequent references to court procedure and judicial implementation, all presupposes a case-by-case approach.
In thus setting the basis for the varying manners of expression of legal orders, the Torah has served as the text to which later legal history essentially serves as the “footnote.”
In thus viewing the Torah as setting the ground for lateral juridicial under standing, another important feature of Torah as acted by the Oral Law is essential. Our tradition notes that dibra Torah bllshon b’nei adam - the Torah is expressed in the vernacular of its time. This concept is most frequently expressed in the realm of philology, where exegetical efforts are required to explain a particular mode of expression, the repetition of a phrase or other stylistic peculiarity. Maimonides extends the principle (following Targum Onkelos) to deal with the difficulties of anthropomorphisms found in the Torah text.
In examining the Torah from the point of departure of jurisprudence, however, the concept may be understood in an even broader sense. It may be applied not to words alone, phrases, and modes of expression, but to the legal institutions used as vehicles for the enunciation of rules and outlook of policy as well. The parasha of Mishpatim is an excellent source for an understanding of areas in which this approach has already been used or may yet be applied more broadly.
The development of legal rules to be used in a real judicial system from a fixed text normally presents a problem to the system itself. It is obviously impossible for a mortal, finite legislator to foresee all situations and cases which may arise. Even if he could foresee all such cases, it would be impossible within the limits of brevity required for a legal text to be useful, to set out all such possibilities with specificity. For that reason, the usual technique of the legislator is to furnish the outline of those guiding principles deemed most significant and rely upon later “generations” of judges to interpret and apply those basic principles to newly created situations and problems. The development of our United States Constitution from an 18th century matrix to the governing principles of the 20th century society - with relatively little amendment of basic text - is an example of this technique at its best. Most state constitutions and statute law in general is not, in that it will rely on amendment almost as often as upon interpretation.
We obviously do not attribute to the Divine Legislator the same difficulty of understanding or foresight, for an Infinite God can foresee without effort the myriad or infinite applications in the future of any specific legal text or command. Nonetheless, the principle of dibrah Torah requires that we see God, in his composition of the Torah, laboring, as it were, under the same problem of expression as that faced by a mortal legislator, albeit for different reasons. Had God included in the Torah that mode of expression in specific rules which would have covered all cases into the eternal future, the original text of the Torah would have made no reasonable sense nor conveyed specific directives to those standing at Sinai, or for that matter to men of the 18th century, the 20th century, or the 23rd century. The only manner in which the basis for a law of torts (damage by one party to another) could be expressed was in the form involving the goring by an ox. To express the rule in terms of automobiles or atomic explosions would have been meaningless to the Jews at Sinai whose understanding was immediately required to carry forward the oral tradition and the acceptance of Torah. Similarly, the expression of any such rule in terms of material objects or situations not yet imagined would make the Torah - if we should have even received it in our day - meaningless to us.
This manner of legal expression and development is readily accepted in the contemporary legal scene. We operate our automobiles under rules first established in horse and buggy collision cases; the problems of atomic explosion are related to rules expressed in cases involving the harboring of a dangerous Bengal tiger. Curiously - or perhaps tragically - the law of torts in the State of Israel today rests on a foundation not of arbah avot nezikim of halakhic tradition, but of the rules of oxen, carts, and the like of the Turkish Majelle. (The efforts of some prominent members of the Israeli judiciary are directed towards introduction of greater reliance on halakhic approach and standards.)
But while this approach is both understood and accepted, similar application on a different scale of the same dibrah Torah concept has not yet been fully appreciated in all its ramifications in the development of the halakha itself. Perhaps the existence of the State of Israel, with concomitant proliferation of Torah institutions devoted to uncovering applications of halakhic principles in the modern setting, may furnish the means for such increased appreciation.
Such application would view not only single words or phrases but even entire institutions discussed in the Torah as the product of dibrah Torah. Such an approach would compel us to explore the sources of halakhic development to find those present-day situations where application of the Torah rule would reach the Divine result. In other words, just as we may understand that the “goring of an ox” must now be viewed as applicable to the “negligent collision of an automobile,” so too may there properly be a current coin for the restriction on slavery in a time when the institution itself no longer exists, but where work conditions and employer-employee relationships continue to require regulations. Similarly, we may find new applications for the restrictions on interest even when we have developed within halakha legal fictions to avoid the prohibition, or for the laws of the Shemitah (sabbatical) and yovel (jubilee) years, even under the halakhic view that they are currently limited in their application.
To a considerable extent, it is true that contemporary responsa literature has attempted some such application in dealing with economic problems, questions of labor unions, and similar “modern” matters. Yet, there may be room for a greater acceptance of the rule of halakha. In proclaiming the Shemitah release of debts, the Torah established a specific halakhic institution. In the course of halakhic history, for valid and binding reasons, we have avoided direct adherence to the Written Law rules established in a time of a simple, agrarian economy. While it would appear to be the Torah’s intention to require such adherence in our own economic melieu, perhaps we may yet distill the essence of those same regulations in our contemporary setting and develop in our day institutions as striking and as important to our economic setting as the Shemitah release and related institutions were in the time of the giving of the Torah. We may thus yet learn that these laws have more than antiquarian or abstract interest but a continuing and developing vitality.
All this is not to suggest a “fundamentalist” approach, for this would be an obvious rejection of the Oral Law, of the development of halakha, and of the principle of dibrah Torah itself. It does suggest, however, that those economic pressures which have forced the continued re-interpretation by halakhic authority to atrophy certain institutions may not necessarily be essential steps in the development of the application of the text of Torah and the halakha. Nor should we be misled into the reformist effort to distill the so-called “spirit” of specific halakhic rules while abandoning their practical impact. The suggested approach, quite the contrary, would expand the reach of halakha rather than empty it into vacuousness.
It would be equally erroneous to assume that our contemporary legal framework gives all the “final” secular formulations to which the Torah’s legal, social, or economic scheme is but Deripheral. Within the memory of men living today, an entire new range of property concepts has been created. The outlook of the yovel treatment of property ownership may well be closer in spirit to the current vogue of long-term leasing or of government control by zoning regulations, than the absolute ownership viewpoint of past centuries. From that viewpoint, the contributions of Torah wisdom are far from ended.
Similarly, we may yet not have reached that level of political development when the regulations of the Hebrew slave, which introduce this parasha, may once again become meaningful in a more direct and specific sense. It does not require too great a measure of foresight to suggest possible developments in the structure of society which could make meaningful the limitations and the spirit of approach of the Torah implicit in our sedrah. Where personal status and vested economic expectations are more important than abstract political freedoms, new conceptions of personal relations of superior to inferior found in the Torah may have a vital importance beyond the merely historic. A society which forces its employees to remain at their jobs to protect pension and retirement rights cannot imagine that the “freedom of speech” which it offers will make a discussion of “servitude” outmoded.
We should not, therefore, so readily dismiss the continuing contemporary validity in even the secular sense of the halakhic outlook. In our own recent memory, we have seen the development of law in the United States “catch up,” as it were, with some of the basic rules of the halakha. It is a halakhic maxim which prohibits the use of confession in criminal convictions. Presumably, the halakha does so from a realization of those problems of human personality and judicial administration with which contemporary law is only beginning to grapple. The Supreme Court, decision by decision, struggles with the complicated inter-related rules for limitation of the use of confessions. Some writers reluctantly suggest that the best rule might be to ban the use of confessions completely. Such a suggestion, which might once have been dismissed as an abberation, is now seriously weighed.
In related areas, too, the halakha long ago enunciated rules not yet fully adopted by the most advanced Western system of law. The protection of the right to privacy, the security of a man’s home from intrusion, or the need for judicial protection of the rights of the accused are matters currently demanding vast amounts of judicial energy. Yet, for the halakha, basic protections were accepted in the time of the Mishnah.
Perhaps the most glaring illustration of an area in which the halakha has long since put forth a solution to a nagging social problem is the matter of divorce. This is not the place for a detailed analysis of the halakhic approach to the rights of married parties in general, or women in particular. Suffice it to say that even though it may not have originally been the case, certainly since the days of Rabbenu Gershom and subsequent rabbinic applications of halakha, the principal occasion for divorce is the mutual consent of the parties. In no state of the Union is such a sensibly radical procedure accepted. Instead, we often find fictitious “residence,” trumped up claims of cruelty, staged “adultery,” or perjured annulments.
If the halakha can continue to offer a goal for secular judicial or legislative achievement in this delicate area, it may certainly do so in other areas as well. This sedrah, therefore, offers much opportunity for consideration of such possibilities. By the use of the principle of dibrah Torah in its broadest sense, can the eternality of Torah in all its ramifications become even more manifest in our day and our own society.
Lawrence A. Kobrin, a New York attorney, is a member and former secretary of Yavneh’s National Advisory Board.
YAVNEH STUDIES IN PARASHAT HASHAVUA, edited by Joel B. Wolowelsky, was a 1969-72 project of YAVNEH: THE RELIGIOUS JEWISH STUDENTS ASSOCIATION. The bios here are as they were at the time of the original publication. For a history of YAVNEH, see Benny Kraut, The Greening of American Orthodox Judaism: Yavneh in the 1960s (Cincinnti: Hebrew Union College Press, 2011).