Mishpatim 5780: Rabbinic Intern David Chapman

Good morning. I spoke last night about Shabbat Shekalim – and in particular the verse that teaches us that the shekel was donated both for communal upkeep and for spiritual atonement.

This blending of the practical and the ritual appears in our main Torah portion as well, Mishpatim.  Last week in Parshat Yitro, Israel receives the aseret hadibrut – known at the Ten Commandments.  And immediately after, we begin a section of Torah known as the Covenant Code. It begins: 

V’eleh hamishpatim asher tasim lifneihem.  These are the mispatim, the ordinances, you shall set before them.  Mishpat means “sentence” as in a grammatical unit, but also lishpot means “to sentence, to judge.”  Like in English, the word can carry both definitions.  The English word “sentence” comes from the Latin “sententia” – an opinion or a way of thinking or feeling.  We hear its similarity to the word “sensible” but also “sentimental”   And when we start to unpack it, these laws do have an element of logic and reason but also an element of heart.

The laws in this parsha at first seems like a stark contrast to the 10 Commandments.  While those statements were grand pronouncements, delivered amidst intense lighting and sound effects, in Mishpatim we get a litany of rules and sub-rules.  A legal code.    The Covenant Code spans everything from death caused by a runaway ox to the details for observing the Shalosh Regalim, the three pilgrimage festivals, to rules around borrowing and lending.  It’s kind of like the difference between the Declaration of Independence and the Constitution. One lays out the grand vision for the nation, and the other is where the rubber hits the road. Ok, now that we’ve established what we want to be about, how to we organize society.  The ten commandments alone can’t serve as our corpus juris, our body of laws … What happens when an ox gores my sheep?  The Ten Commandments don’t really provide for that.

I’ve been thinking a lot about this transition from Declaration of Independence to Constitution.  Maybe it’s because we are in such a … shall we say … heightened time in our own democracy. I was reflecting on that famous story you might recall, that back in 1787, as the Constitutional Convention concluded in Philadelphia, the people gathered in front of Independence Hall to hear the results – what kind of government did the framers create? Benjamin Franklin emerged and someone shouted at him “What have we got, a republic or a monarchy?”  And Benjamin Franklin replied, “A republic, if you can keep it.”  In other words, having a republic – a form of government where we elect representatives, where the state belongs to the people and not to the ruler --  is a responsibility. If we’re not careful, we might lose it.  Indeed, the first republic in history, the Roman Republic, eventually slid back into monarchy when it became the Roman Empire in the year 27 BCE.  Republics don’t necessarily last forever.  And this story, of Ben Franklin warning the American people that we must fight to keep our state as a Republic, has become one of those popular refrains in American political culture. It’s so much a part of American mythology, that in the last few months, the anecdote has been used by both liberal House Speaker Nancy Pelosi and conservative Supreme Court Justice Neil Gorsuch.  It’s SO well-known, in fact, that I was surprised to learn that we’ve all been telling the story completely wrong. But I’ll come back to that.

So, if the laws of Mishpatim express Israel’s “Republic, if they can keep it,” what kind of republic is it?  Well, it’s hard to say. Sometimes these laws express ethics we can more easily get behind, such as a prohibition for Jews to charge interest from one another.  Sounds great! This law offers the Biblical underpinning for organizations like the Hebrew Free Loan Society, which was founded over 100 years ago in New York to do exactly what its name says it does. Today, it does so much more, but all based on that original sentiment.  Today, under the leadership of our colleague Rabbi David Rosenn, Hebrew Free Loan Society has expanded its mission to serve all low- or moderate-income New Yorkers along with pursuing advocacy to fight systemic economic inequality.  But some of the other laws of Mishpatim seem cruel, such as the well-known principle of ayin tachat ayin “eye for an eye,” about which the rabbis of the Talmud spent a lot of energy trying to reconstruct as financial equivalents rather than actual eyeballs.  And some of the laws might be ethical in their original context, but that context is now so offensive to us that it’s hard for us to claim pride over it. I include in this the laws governing the “just” treatment of slaves, the “right” way to sell one’s daughter into service, and the “proper” consequences for seducing a virgin. They are all in our Torah, and they are reflective of the norms of the time, but they aren’t going to be the Torah verses I hope to have framed in my office someday.  

But if I’m looking for a through line that connects the dots between all of these laws, it seems to be this: Each one of us matters.  Each voice, each person, each household has value and importance in God’s eyes, and by extension in the eyes of each one of us.  You see that clearly in the injunction against causing pain to widows or orphans.  Rashi points out that, of course, you are not supposed to cause pain to anyone! Why does the Torah make a point to mention orphans and widows? Because God knows they are the most vulnerable, and therefore the most susceptible to mistreatment. The Ramban picks up on the detail that the verse says ANY widow – meaning that even a wealthy person can suffer mistreatment and loss.  

This value, that everyone in a society is worthy in God’s eyes, especially the marginalized, returns us to the story about Ben Franklin on the steps of Independence Hall.  If you recall, as I related the story, Ben Franklin appears and the crowd shouts out: What do we have, a Republic or a monarchy?”  But – according to historian Dr. Zara Anishanslin – the questioner wasn’t some anonymous voice in the crowd, but a specific person: Elizabeth Willing Powel “a pivotal woman of the founding era who has been erased from this story.”  According to Anishanslin, Powel organized a political salon in her home during the Constitutional Convention and that’s where this conversation took place. She was friendly with George and Martha Washington, and Benjamin Franklin, along with the other framers, were frequent guests in her home.

But over the decades, while the anecdote remained popular, Mrs. Powel’s role disappeared.  The setting also changed, from Mrs. Powel’s salon to the public square. Anishanslin points out that these changes to the anecdote went hand in hand. In public, only men’s ideas would be heard out loud, but in the privacy of a salon, especially of an important woman, people like Mrs. Powel could be “active, influential patriots.” The disappearance of Mrs. Powel removes from American history one of the few stories we have of America’s “founding mothers.”  Recognizing the contribution of women in the past, Anishanslin writes, might make it easier for us to keep our republic in the present.

Our Torah teaches us a similar lesson when it singles out the mistreatment of widows and orphans. The punishment for such mistreatment is that God will make widows out of the wives and orphans out of the children of perpetrators – a Biblical legal principal knowns as mida k’neged midah – measure for measure, or “what goes around comes around.”  Like “an eye for an eye,” we can interpret this figuratively rather than literally.  A society that devalues the voices and experiences of women one day will continue to devolve over time.  More and more people will find themselves disenfranchised. We’ve seen this happen time and time again.

When we read Mishpatim, I invite us to listen carefully for the voices the Torah is making sure we hear.  I believe one of the deepest lessons in this Torah is that of radical listening to each voice in our society. That’s one of the benchmarks of the nascent Jewish “republic” Moshe and the rest of Israel are trying to build in the desert. It is a value worth keeping, if we can keep it.

Shabbat shalom.