Friday, February 16, 2007

Resetting the Moral Compass

Parshat Mishpatim comes as a bit of a surprise. It covers many issues of civil law, from property damage and criminal negligence to theft and assault, and it legislates the appropriate restitution for each case. The question is why the Torah expends its precious parchment and ink on such utilitarian matters.

G-d bestowed man with a moral compass and human societies have long demonstrated their ability to establish ethical codes of law. The Torah doesn’t have to get into the nitty-gritty of dollars and cents. All G-d has to do is tell us to create a just legal system; He can leave the details to us.

In fact, this is exactly the way it is for the rest of humanity – one of the seven Noahide laws is to establish courts of justice (cf. Maimonides, Laws of Kings 9:14). Societies are obligated to use their collective moral intelligence to compose a legal code and a court system. Gentile courts need not consult with the Torah (cf. Teshuvot HaRama 10) for G-d has confidence in man to know what is just and what is not. So why, when it comes to the Jews, does the Torah deem it necessary to dictate the letter of the law? Does G-d not have faith in His Chosen People? Is our moral compass any less accurate than that of the North Koreans or Singaporeans?

Moreover, while the rules laid down in Mishpatim do contain several unique elements, they don’t strike us as necessarily “more just” than alternative options. Compensation for the unexpected violence of a docile animal is set at 50% of the damage (Shemot 21:35), but would 75% or 25% be unjust? The same kind of question can be asked about virtually every law in the parsha. Another example: In addition to the obvious obligation to return a stolen item, the Torah slaps on a punitive fine of 100% the value of the item (Shemot 22:3). (The thief is exempt from this fine if he turns himself in, cf. Shemot ad loc; Talmud, Baba Kamma 14b.) This makes sense, but would a 50% or 200% fine be unjust? What about a jail term or community service? These options and many others also seem fair; certainly a gentile court is well within its rights to establish the laws of damages and theft as they deem fit. In the face of a host of valid and just options, why does the Torah restrict us to one particular ruling?

Our parsha begins with an “and.” “And these are the laws” (Shemot 21:1). Why the “and”? Rashi quotes the Midrash:
“And these” connects [our parsha] to the previous [teachings] (i.e., the Ten Commandments). Just as those were from Sinai, so too these are from Sinai.
The Sefas Emes (R. Yehudah Leib Alter, 1847-1905) asks the obvious question. All 613 mitzvot of the Torah are from Sinai! Why does the Torah need to stress the divine source of Mishpatim? The Sefas Emes answers the question with a quote from his grandfather, the Chiddushei HaRim (first Rebbe of Ger, 1799-1866).
The essential point that G-d wants us to understand is this: Despite the fact that the laws of Mishpatim are understood by the mind of man, they exist only because they are the will of G-d… Even the logic and the comprehension of man is the result of G-d’s will.
This, says the Sefas Emes, is why we need the “and.” It is the very logic of civil law and the recognized imperative for justice that requires us to emphasize the divine source of Mishpatim. We must never forget that it was G-d who gave us these laws. More than that, it was G-d who gave us minds that can understand them.

The Sefas Emes and the Chiddushei HaRim were central figures of 19th century Chassidism. However, this perspective is not uniquely Chassidic, it’s just plain Jewish. In fact, Reb Yerucham Levovitz (1874-1936) and the Alter of Kelm (R. Simcha Zissel Ziv, 1824-1898), proponents of the non-Chassidic Lithuanian school of Mussar of the same era, understood Mishpatim in the very same way. And they took the idea one-step further.

Like his contemporary the Sefas Emes, Reb Yerucham was intrigued by the Midrash that underscores the divine source of Jewish civil law. In explanation, he quotes a radical teaching of his rebbe, the Alter of Kelm.
Take, for example, the mitzvah of honoring parents. People commonly think that this mitzvah was given because parents exist… Actually, the exact opposite is true. The reason why people have a father and a mother is because the Torah wanted to command us to honor parents…
It sounds wild, but there’s really nothing original here. We know that the Torah predated Genesis (Talmud, Shabbat 88b) and the very first Midrash (Bereishit Rabba 1:1) tells us that “G-d looked into the Torah and created the world.” This means that every physical reality, from human reproduction through two parents to civil law, morality and logic has its source in the blueprint of creation, the Torah. If it’s out there, it’s because it’s in the Book.

When G-d created man, He built a moral compass into his genetic code. What did G-d use as the guide for the code’s design? Parshat Mishpatim.

Mishpatim is pure unadulterated justice. Filtered through the static of the human mind, our sense of justice loses its exactitude and multiple options appear equally just. In the courts of the world, no two legal systems match. But Mishpatim remains the eternal, unchanging bedrock of justice, the divine blueprint of human morality – and G-d gave it to the Jews.

He relates His words to Yaacov, His statutes and judgments to Israel. He did not do so for any other nation; He did not make Mishpatim known to them – Halleluyah!

Psalms 147


  1. Rabbi Gordon,

    You touch upon many broad topics which will require much thought on my end over the Sabbath. A quick question though:

    How do you reconcile the idea of istakel b'oraiysas u'barah alma with the fact that so many of the basic ideas in Mispatim are subject to decisions in the Oral Law? For example, whether yiush sh'lo midas is yiush or not will directly affect whether one is in violation of the Biblical command not to steal.

    Do you believe that there is some over-arching divine providence guiding the process to a "correct" result or do you believe that the Torah that predated creation could contain both options?

    Surely your approach to this issue will have to deal with the obligations the Torah placed upon those who predated its actual giving at Har Sinai (e.g. the Avos).

    I look forward to seeing you flesh out these ideas a bit more as comments come in. (Do you still claim to have no Brisker Torah on your blog?).

    Good Shabbos,

  2. Naftoli in Miami-

    I'm not used to fielding such intense and scholarly questions on this blog, but I'll give it a shot.
    There is a divine "version" of Torah (i.e., a Torah which includes final rulings on all matters) that is not ambiguous. This is the version that was taught to Moshe at Sinai and I'll bet that that was the version G-d used in His design of man. However, this version itself is well aware that "Torah is not in Heaven" and "these and those are the word of the Living G-d." If forgotten, Torah can be recreated through its own Midrashic/Halachic process using the 13 hermeneutic principles and Talmudic logic.
    Does this suffice to address your questions?

  3. Rabbi Gordon,

    I am not sure I understand what you are saying in this last comment. You seem to be touching on the version of the Torah given at Sinai and then further attempts to recreate it when lost or forgotten. I, in my question, was more focused on the idea you mentioned from Bereishit Rabba of there being a Torah which not only pre-exists the creation of the world, but is the blueprint for that creation. I was wondering if you could address that.
    However, the point you raised at the end of the last comment was interesting as well. Do you believe that the 13 hermeneutic principles and "Talmudic logic" can restore us to the version of the Torah given at Sinai? Are you implying that when we pasken al pi rov we are in fact mirroring reality? If so, I have to ask again if you are indeed a Brisker at the end of the day, the legend on your masthead notwithstanding.

  4. Naftoli-

    Forgive me for being stingy with my ink.
    What I was trying to say was this: It stands to reason that the blueprint for creation and man was the same Torah delivered at Sinai. (Although it is also possible that the ink of the primordial Torah was still wet and the halacha was as yet undetermined when man was created. See Ramban's intro to Bereishis.) Now, some of the details of the original oral tradition were forgotten and the sages used mesoratic tools to "recreate" them. Whether or not the recreated law matched the original is irrelevant; as long as the midrashic/halachic process is adhered to faithfully, the result is authentic Torah even if it's new.
    Nothing Brisk about it.

  5. Naftali's grandfather2/22/2007 12:03 AM

    My experience with Brisker Torah is that it is the use of precise language to get to the heart of a subject. In what sense is the expression Brisker Torah used in the previous discussion?

  6. Naftoli in Miami2/22/2007 8:42 PM

    The Brisker element is as follows:

    Take, for example, the mitzvah of honoring parents. People commonly think that this mitzvah was given because parents exist… Actually, the exact opposite is true. The reason why people have a father and a mother is because the Torah wanted to command us to honor parents…

    The reason I feel this is a Brisker idea (regardless of where the good Rabbi has quoted it from) is because this idea is at the core of why so many who follow in the its path are emotionally stunted. While conceptually it may be true, it need not, nay, should not, be the prism to which we view the world. A good example of this is the story about the man who came to ask the Brisker Rav a shaila about an adopted daughter. It is also the kernel behind the two more famous jokes about Brisk (the mishanah ha'brios bracha and the hefsek after making a bracha on dying altz kiddush hashem - v'hamayvin yavin.)
    Once you get past the jargon, this is also a core idea in Rav Yoshe Ber's Halachik Man.
    The non-Brisker approach is to view the world and growth within it as a dialectic tension between the adom and the Torah.
    I have no problem with this Brisker approach, per se, but was responding to the masthead declaration of not writing Brisker Torah. I highly doubt the kindly Rabbi had your notion of Brisk in mind when he wrote. Perhaps he can explain what it was he meant.
    Should you so desire, I can expand on this further.

  7. naftoli's grandfather-

    I love your succinct description of Brisker Torah. I'm a big fan myself, mostly due to your tutelage. Note that the Griz is quoted in my most recent post. Allow me to explain what I meant when I promised no Brisker Torah on this blog.
    As you wrote, the style of Brisk gets to the heart of the issue, whether the text is Talmud, Maimonidies or even the parsha. However, it is the "legal" heart. It is in the search for technical definitions that the Brisk technique is so useful and effective. But it is not definitions that I am after on this blog; I am looking for the unambiguous messages and lessons of the parsha. The schools of P'shat, Mussar and Chassidism often focus on this question. Brisk does not. Of course, one might use the tools of Brisk to understand a particular verse - an obvious prerequisite to discovering the parsha's point. My most recent post, "A House of Love and Prayer," is an example of just that.

  8. Naftoli's grandfather2/28/2007 12:21 PM

    Thank you, Rabbi Gordon and Naftali in Miami for your clarifications of your references to Brisker Torah, which I did not initially understand.
    I suspect, though, that if Rabbi Soloveitchik had been told of Reb Yeruchem's statement that parents were created so that there should be a mitzva of honoring them, he would have said that he is not in the business of determining G-d's purpose in creation. And if asked if that was not his point in Ish Hahalacha, I suspect that he would have said that he was there contrasting the point of view of the religious man who seeks to rise above the world and contemplate the divine abode (and would probe the purpose of creation) and the man of halacha who does not deny the world but rather sees sanctity in the relevance of every aspect of the world to halacha.

  9. Naftoli in Miami-

    I reject your association of Brisker Torah with the stunting of emotions.

  10. Naftoli in Miami3/03/2007 7:25 PM

    Rabbi Gordon,

    You are an idealist and view things conceptually. I am a cynic and view things empirically.

  11. Just because you have met emotionally stunted Briskers, does it necessarily follow that Brisker Torah made them that way? As R. Meir Shmulevitz points out, many fat people drink diet coke. That doesn't make diet coke into a sibah for being overweight.

  12. Naftali's grandfather3/07/2007 1:32 PM

    Doctoral programs in the most demanding disciplines, the highest level of achievement in music and art and chess are associated with many people who are not in the greatest shape emotionally. Which indicates...?