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And These Are the Ordinances Which You Shall Set Before Them

Author: Esther Ehrman, Shvat 5769/Feb 2009

"elei ha mishpatim asher tasim lifeneihem" (mishpatim, Exodus 21,1)

A language is often characterised by the number of terms it has to describe something. Hebrew has seventy terms with which to designate G-d. It has a number of terms to categorise commandments, e.g., mitzvah, mishpat, chok, din, gezara. Each conveys something different about Divine instructions within the whole body of law, the Torah (this last term is also used within the text to designate ‘instructions’)

Mishpatim appears frequently together with and in contradistinction to chukkim and that is how RamBaN (Nachmanides) understands and explains the term in the sentence quoted in the title, the opening statement of the Torah Section called Mishpatim. It is generally assumed that mishpatim are, or can be, explained and that chukkim may not. Ramban sees mishpatim as civil laws (Samson Raphael Hirsch calls them social ordinances) and notes that their place comes rightfully before chukkim. They follow logically on the last of the Ten Commandments in the preceding section, ‘You shall not covet…’ ‘for if a man does not know the laws of house and field or other possessions, he might think that they belong to him and thus covet them and take them for himself’ (transl. C.B.Chavel, Exodus,p.338). Moreover, he tells us, justice requires that they be placed immediately after the Ten Commandments, since the whole Torah depends on justice (Midrash Rabbah,30.15). Incidentally, the equality of treatment in law of women and men in all monetary matters (dinim) is derived from our opening statement, ‘These are the mishpatim that you shall set before them’ (Bava Kamma 15A).

Earlier in the Biblical text (Ex.15, 25),at the incident of Marah, where Moses hit the rock to provide the Israelites with water, chok, Ramban writes, preceded mishpat (sham sam lahem chok u mishpat – ‘there, he set for them a statute and an ordinance, chok u mishpat’). Here, the stress is not on justice, but on accepting the word of G-d. Hence the order of the words. The commentators explain chok u mishpat here as being a sample of commandments; Rashi suggests that the Israelites were shown the laws of the parah adumah (the red heifer, accepted as the classic chok), Shabbat and dinim (laws of justice – this would be in the category of mishpatim), so that they might study them.. There is a certain amount of controversy as to when/where the mishpatim were given. Was it first at Marah, with a repetition at Sinai, or was it at Sinai for the first time. All agree that they form part of the Revelation at Sinai. There is also some discussion among the early commentators which aims to ensure that the less understandable chukkim are not treated more lightly.

The RaMbaM (Maimonides) devotes three chapters of his More Nebuchim (Guide for the Perplexed, part 3, chs.26-28) as well as a section at the end of Hilchot Me’ila (8.8. Laws on changing the status of things that have sanctity) to the question of mishpatim and chukkim, largely presented by him as one body of law. He sees these commandments as having three functions (ch.28):

to impart some truth
to teach some moral
to remove injustice

‘The reason of a commandment …is clear and its usefulness evident, if it directly tends to remove injustice, or to teach good conduct that furthers the well-being of society, or to impart a truth which ought to be believed, either on its own merit (e.g that G-d is one) or as being indispensable for facilitating the removal of injustice or the teaching of good morals (eg. not to murder or take vengeance, to love one another).

This is certainly an extension of what we seemed to mean when speaking of social ordinances (mishpatim) and statutes (chukkim). It raises law to the level of ethics and broadens the ordinances and statutes to the meaning of Jewish Law . It is here not only a matter of ensuring a –just- organisation of society. If laws teach us truths and morality, where do we place e.g. the commandments concerning sacrifices, the red heifer, milk and meat prohibitions. The easy answer is that these are chukkim, but that does not satisfy the Rambam’s three criteria. A law can only impart a truth or teach a moral if it is understood and that is perhaps why Rambam states that ‘there is a reason for every precept, even if it is unknown’ (Part 3, ch.26, More Nebuchim).

If we accept this, the distinction between mishpatim and chukkim becomes blurred. Rambam here is making a different distinction, ‘I will now tell you what intelligent persons ought to believe in this respect; namely that each commandment has necessarily a cause, as far as its general character is concerned, and serves a certain object; but, as regards its details we hold that it has no ulterior object’. Among the examples that he gives, we find ‘The law that sacrifices should be brought is evidently of great use…but we cannot say why one offering should be a lamb, whilst another is a ram; and why a fixed number of them should be brought……It is almost similar to the nature of a thing which can receive different forms, but actually receives one of them’ (ibid). Moreover, ‘those who trouble themselves to find a cause for all these details are, in my eyes, void of sense’ (ibid).

There is still a need to carry out a commandment without question, but it is in the detail, in the manner of its application, not in fulfilling the commandment itself. It is not that there are human reasons for the mishpatim and that chukkim are beyond human understanding. Sacrifices, for example, are explained by Rambam (ch 32) as a means used by the Almighty to teach us how to worship Him. Sacrifices were ‘the’ means of worship, and ‘the nature of man is never changed by G-d by way of miracle’ (ibid). The prophets repeatedly stress that, unless accompanied by moral behaviour, sacrifices are unacceptable. They are, further, limited in terms of time and place, unlike prayer and other mitzvoth such as Tzitzit. Although the Temple was the centre of Jewish life and worship, Jewish life has continued, albeit inadequately, without the Temple. In the desert, the Revelation at Sinai precedes, at least textually, the building of the Tabernacle. – On the other hand, we read about the altar in parashat Yitro, just before the opening of our parashat Mishpatim, (‘And these are the mishpatim that you shall set before them’), for which one reason given is that this juxtaposition teaches us to place the Courts of Justice next to the Temple ( and not the other way around).

The first commandment to be given after the Exodus is not sacrificial worship. It is the statement made at Marah (sham sam lahem chok u mishpat). Like Ramban, Rambam understands mishpat here as civil law ‘which are the means of removing injustice’ (ibid). Interestingly, Rambam understands chok here to refer to Shabbat, a commandment for which we are certainly given a reason, - indeed two reasons in the two versions (Exodus and Deutoronomy) of the Decalogue. 1. ‘That we might confirm the true theory, that of the Creation, which at once and clearly leads to the theory of the existence of G-d.’ It thus imparts a truth 2. ‘That we might remember how kind G-d has been in freeing us from the burden of the Egyptians’ – again, a truth, a moral truth - ‘the Sabbath is therefore a double blessing: It gives us correct notions and also promotes the well-being of our bodies’ (Guide, part 2, ch. 31).

Being a physician, Rambam is also concerned with the well-being of our bodies. In Ch.27 (part3, Guide), he tells us that the general object of the Law is to ensure a). the well-being of the soul and b). The well-being of the body. His subject here is not only society, but also the individual. ‘A person who is suffering from great hunger, thirst, heat or cold cannot grasp an idea’. Man, however, is a social creature and ’the body’ in this chapter also indicates the body politic, society. ‘The well-being of the body’ then means ‘material relations’. The individual, to be healthy and able to satisfy his bodily requirements, needs others, needs society ‘one man alone cannot procure all this’. When a person has satisfied his wants , he acquires a first ‘perfection’, which then allows him to acquire the second perfection, that of the soul, ‘becoming an actual intelligent being’. This ‘does not include any action or good conduct, but only knowledge’. It is ‘promoted by correct opinions’. Perfection of the soul is, ‘alone, the source of eternal life’. The necessary precondition for this is good mutual relations, which are ensured by mishpatim. Seen in this context, the mishpatim are not an end in themselves because the Law of Moses also ‘seeks to train us in faith and to impart true and correct opinions when the intellect is sufficiently developed’. In the wider sense, as we saw earlier, commandments do also impart truths and enable good morals. The laws of Shabbat fulfil both functions as we saw. Interestingly, we take the blowing of the Shofar to belong to both categories. When we make Kiddush on Rosh HaShana, in the morning, we say: tike’u ba chodesh shofar, be keisei le yom chageinu; ki chok le Yisrael hu, mishpat le elokei Ya’akov. ‘Blow the horn in the new moon, in the time appointed, on our solemn Feast day. For this is a statute for Israel, a law of the G-d of Jacob’ (Ps.81, v.4-5). The Shofar proclaims and publicises the Festival. One might say that its function is to awaken our spiritual self, so that it serves the well-being of the soul as well as calling the congregation together.

Jewish Law, the Torah, is the Divine crowning glory of the people, whatever term is used at any given point, ki mi goy gadol asher lo elohim kerovim eilav k’H elokeinu be chol koreinu eilav. U mi goy gadol asher lo chukkim u mishpatim tzadikim ke chol ha torah ha zot asher anochi notein lifneichem hayom.’For what nation is there so great, which has G-d so near unto them as the Lord our G-d is in all things that we call upon Him for? And what nation is there so great that has chukim and mishpatim so righteous as all the Torah which I set before you this day’? (Deut.4, v.7-8).