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COVENANT & CONVERSATION: Mishpatim – In The Details
Covenant & Conversation
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Chief Rabbi Lord Sacks
http://www.chiefrabbi.org/2013/02/04/covenant-conversation-mishpatim-in-the-details/#.URK03uhrq-4On the opening phrase of Mishpatim – “And these are the laws you are to set before them” – Rashi comments: “And these are the laws” – Wherever uses the word “these” it signals a discontinuity with what has been stated previously. Wherever it uses the term “and these” it signals a continuity. Just as the former commands were given at Sinai, so these were given at Sinai. Why then are the civil laws placed in juxtaposition to the laws concerning the altar ? To tell you to place the Sanhedrin near to the Temple. “Which you shall set before them” – G-d said to Moses: You should not think, I will teach them a section or law two or three times until they know the words verbatim but I will not take the trouble to make them understand the reason and its significance. Therefore the Torah states “which you shall set before them” like a fully laid table with everything ready for eating. (Rashi on Shemot 23:1)
Three remarkable propositions are being set out here, which have shaped the contours of Judaism ever since.
The first is that just as the general principles of Judaism (aseret hadibrot means not “ten commandments” but “ten utterances” or overarching principles) are Divine, so are the details. In the 1960s the Danish architect Arne Jacobson designed a new college campus in Oxford. Not content with designing the building, he went on to design the cutlery and crockery to be used in the dining hall, and supervised the planting of every shrub in the college garden. When asked why, he replied in the words of another architect, Mies van der Rohe: “G-d is in the details”.
That is a Jewish sentiment. There are those who believe that what is holy in Judaism is its broad vision, never so compellingly expressed as in the Decalogue at Sinai. The truth however is that G-d is in the details: “Just as the former were given at Sinai, so these were given at Sinai.” The greatness of Judaism is not simply in its noble vision of a free, just and compassionate society, but in the way it brings this vision down to earth in detailed legislation. Freedom is more than an abstract idea. It means (in an age in which slavery was taken for granted – it was not abolished in Britain or the United States until the nineteenth century) letting a slave go free after seven years, or immediately if his master has injured him. It means granting slaves complete rest and freedom one day in seven. These laws do not abolish slavery, but they do create the conditions under which people will eventually learn to abolish it. Not less importantly, they turn slavery from an existential fate to a temporary condition. Slavery is not what you are or how you were born, but some thing that has happened to you for a while and from which you will one day be liberated. That is what these laws – especially the law of Shabbat – achieve, not in theory only, but in living practice. In this, as in virtually every other aspect of Judaism, G-d is in the details.
The second principle, no less fundamental, is that civil law is not secular law. We do not believe in the idea “render to Caesar what is Caeser’s and to G-d what belongs to G-d”. We believe in the separation of powers but not in the secularisation of law or the spiritualisation of faith. The Sanhedrin or Supreme Court must be placed near the Temple to teach that law itself must be driven by a religious vision. The greatest of these visions, stated in this week’s sedra, is: “Do not oppress a stranger, because you yourself know how it feels like to be a stranger: you were strangers in Egypt.” (Shemot 23:9)
The Jewish vision of justice, given its detailed articulation here for the first time, is based not on expediency or pragmatism, nor even on abstract philosophical principles, but on the concrete historical memories of the Jewish people as “one nation under G-d.” Centuries earlier, G-d has chosen Abraham so that he would “teach his children and his household after him to keep the way of the Lord, by doing what is right and just.” (Bereishith 18:19) Justice in Judaism flows from the experience of injustice at the hands of the Egyptians, and the G-d-given challenge to create a radically different form of society in Israel.
This is already foreshadowed in the first chapter of the Torah with its statement of the equal and absolute dignity of the human person as the image of G-d. That is why society must be based on the rule of law, impartially administered, treating all alike – “Do not follow the crowd in doing wrong. When you give testimony in a lawsuit, do not pervert justice by siding with the crowd, and do not show favouritism to a poor man in his lawsuit.” (Shemot 23:2-3)
To be sure, at the highest levels of mysticism, G-d is to be found in the innermost depths of the human soul, but G-d is equally to be found in the public square and in the structures of society: the marketplace, the corridors of power, and courts of law. There must be no gap, no dissociation of sensibilities, between the court of justice (the meeting-place of man and man) and the Temple (the meeting-place of man and G-d).
The third principle and the most remarkable of all is the idea that law does not belong to lawyers. It is the heritage of every Jew. “Do not think, I will teach them a section or law two or three times until they know the words verbatim but I will not take the trouble to make them understand the reason and significance of the law. The Torah states ‘which you shall set before them’ like a fully laid table with everything ready for eating.” This is the origin of the name of the most famous of all Jewish codes of law, R. Joseph Karo’s Shulkhan Arukh.
From earliest times, Judaism expected everyone to know and understand the law. Legal knowledge is not the closely guarded property of an elite. It is – in the famous phrase – “the heritage of the congregation of Jacob.” (Devarim 33:4) Already in the first century CE Josephus could write that “should any one of our nation be asked about our laws, he will repeat them as readily as his own name. The result of our thorough education in our laws from the very dawn of intelligence is that they are, as it were, engraved on our souls. Hence to break them is rare, and no one can evade punishment by the excuse of ignorance” (Contra Apionem, ii, 177-8). That is why there are so many Jewish lawyers. Judaism is a religion of law – not because it does not believe in love (“You shall love the Lord your G-d”, “You shall love your neighbour as yourself”) but because, without justice, neither love nor liberty nor human life itself can flourish. Love alone does not free a slave from his or her chains.
The sedra of Mishpatim, with its detailed rules and regulations, can sometimes seem a let-down after the breathtaking grandeur of the revelation at Sinai. It should not be. Yitro contains the vision, but G-d is in the details. Without the vision, law is blind. But without the details, the vision floats in heaven. With them the divine presence is brought down to earth, where we need it most.
COVENANT & CONVERSATION: Yitro – The Politics of Revelation
The revelation at Mount Sinai – the central episode not only of the parshah of Yitro, but of Judaism as a whole – was unique in the religious history of mankind. Other faiths (Christianity and Islam) have claimed to be religions of revelation, but in both cases the revelation of which they spoke was to an individual (“the son of G-d”, “the prophet of G-d”). Only in Judaism was G-d’s self-disclosure not to an individual (a prophet) or a group (the elders) but to an entire nation, young and old, men, women and children, the righteous and not yet righteous alike.
From the very outset, the people of Israel knew something unprecedented had happened at Sinai. As Moses put it, forty years later:
Ask now about the former days, long before your time, from the day G-d created man on earth; ask from one end of the heavens to the other. Has anything so great as this ever happened, or has anything like it ever been heard of? Has any other people heard the voice of G-d speaking out of fire, as you have, and lived? (Deut. 4: 32-33).
For the great Jewish thinkers of the Middle Ages, the significance was primarily epistemological. It created certainty and removed doubt. The authenticity of a revelation experienced by one person could be questioned. One witnessed by millions could not. G-d disclosed His presence in public to remove any possible suspicion that the presence felt, and the voice heard, were not genuine.
Looking however at the history of mankind since those days, it is clear that there was another significance also – one that had to do not with religious knowledge but with politics. At Sinai a new kind of nation was being formed and a new kind of society – one that would be an antithesis of Egypt in which the few had power and the many were enslaved. At Sinai, the children of Israel ceased to be a group of individuals and became, for the first time, a body politic: a nation of citizens under the sovereignty of G-d whose written constitution was the Torah and whose mission was to be “a kingdom of priests and a holy nation.”
Even today, standard works on the history of political thought trace it back, through Marx, Rousseau and Hobbes to Plato’s Republic, Aristotle’s Politics and the Greek city state (Athens in particular) of the fourth century BCE. This is a serious error. To be sure, words like “democracy” (rule by the people) are Greek in origin. The Greeks were gifted at abstract nouns and systematic thought. However, if we look at the “birth of the modern” – at figures like Milton, Hobbes and Locke in England, and the founding fathers of America – the book with which they were in dialogue was not Plato or Aristotle but the Hebrew Bible. Hobbes quotes it 657 times in The Leviathan alone. Long before the Greek philosophers, and far more profoundly, at Mount Sinai the concept of a free society was born.
Three things about that moment were to prove crucial. The first is that long before Israel entered the land and acquired their own system of government (first by judges, later by kings), they had entered into an overarching covenant with G-d. That covenant (brit Sinai) set moral limits to the exercise of power. The code we call Torah established for the first time the primacy of right over might. Any king who behaved contrarily to Torah was acting ultra vires, and could be challenged. This is the single most important fact about biblical politics.
Democracy on the Greek model always had one fatal weakness. Alexis de Tocqueville and John Stuart Mill called it “the tyranny of the majority”. J. L. Talmon called it “totalitarian democracy.” The rule of the majority contains no guarantee of the rights of minorities. As Lord Acton rightly noted, it was this that led to the downfall of Athens: “There was no law superior to that of the state. The lawgiver was above the law.” In Judaism, by contrast, prophets were mandated to challenge the authority of the king if he acted against the terms of the Torah. Individuals were empowered to disobey illegal or immoral orders. For this alone, the covenant at Sinai deserves to be seen as the single greatest step in the long road to a free society.
The second key element lies in the prologue to the covenant. G-d tells Moses: “This is what you are to say to the house of Jacob and tell the people of Israel. ‘You yourselves have seen what I did to Egypt and how I carried you on eagles’ wings and brought you to Me. Now, if you obey Me fully and keep My covenant, you will be My treasured possession, for the whole earth is Mine. You will be for Me a kingdom of priests and a holy nation . . .’” Moses tells this to the people, who reply: “We will do everything the Lord has said.”
What is the significance of this exchange? It means that until the people had signified their consent, the revelation could not proceed. There is no legitimate government without the consent of the governed, even if the governor is Creator of heaven and earth. I know of few more radical ideas anywhere. To be sure, there were sages in the Talmudic period who questioned whether the acceptance of the covenant at Sinai was completely free. However, at the heart of Judaism is the idea – way ahead of its time, and not always fully realised – that the free G-d desires the free worship of free human beings. G-d, said the rabbis, does not act tyrannically with His creatures.
The third, equally ahead of its time, was that the partners to the covenant were to be “all the people” – men, women and children. This fact is emphasised later on in the Torah in the mitzvah of Hakhel, the septennial covenant renewal ceremony. The Torah states specifically that the entire people is to be gathered together for this ceremony, “men, women and children.” A thousand years later, when Athens experimented with democracy, only a limited section of society had political rights. Women, children, slaves and foreigners were excluded. In Britain, women did not get the vote until the twentieth century. According to the sages, when G-d was about to give the Torah at Sinai, He told Moses to consult first with the women and only then with the men (“thus shall you say to the house of Jacob” – this means, the women ). The Torah, Israel’s “constitution of liberty”, includes everyone. It is the first moment, by thousands of years, that citizenship is conceived as being universal.
There is much else to be said about the political theory of the Torah (see my The Politics of Hope, The Dignity of Difference, and The Chief Rabbi’s Haggadah as well as the important works by Daniel Elazar and Michael Walzer). But one thing is clear. With the revelation at Sinai something unprecedented entered the human horizon. It would take centuries, millennia, before its full implications were understood. Abraham Lincoln said it best when he spoke of “a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.” At Sinai, the politics of freedom was born.
