Parshas Mishpatim: God’s Will? What About Civil Order!

Parshas Mishpatim1 begins with the continuation of the giving of the Torah. The parsha begins by stating that what is to follow are all of the various mishpatim, or laws, that were given to the Jewish people.

It is not enough to express God solely through ritual. If God is to be expressed through Man’s life it cannot be only in the synagogue. Thus, the Torah contains instructions for how to deal with damages, theft, monetary compensation, losses, punishment, dealings with other people, and so forth. The Torah speaks about all the minutia of everyday life. But these things are not mundane or periphery — they are the very fundamentals upon which Judaism is built. God is to be expressed in the details of our lives, not via ritual — and the world of the synagogue — alone. The goal of of religion is to, “in all your ways, know Him.”2 This is the covenant of Sinai.

The Divisions Of Biblical Law

Most normally presume that the ritualistic commandments — such as, to choose the most famous of examples, parah adumah — are simply chukim; God commanded them, but that is all we know, as they are not logically understood. Then there are commandments like Shabbos; humans likely would not have thought it up, but it makes perfect sense within a religious context. A day of meditation and rest certainly fits inside the religious ethos. Finally, there are mishpatim, which are laws that make general sense, irrelevant of religion. In order for society to succeed, these sorts of laws are necessary. If we were not to punish the murderer, for instance, there would be utter chaos. In short, the mishpatim of the Torah exist to create and ensure civil order; they have nothing to do inherently with religion. Religion wants civil order, no doubt, but mishpatim exist only so as to construct a functioning society upon which a religious society can subsequently be built.

Again, such is how things are generally viewed.

If this conception of Biblical law division were true, however, then the mishpatim as recorded in the Torah should change and adapt with society over time, as needed. Once upon a time, for instance, there was slavery; now that there is no longer slavery, the associated Biblical laws should thus be rendered meaningless. When particular mishpatim were needed so as to create and regulate a functioning society, they were employed; now that they are no longer needed, they should be thrown to the wayside and rendered useless.

Now, while it is true that there is a halachic concept that a Jewish King (or Sanhedrin in place of a King) can decree laws that are only binding for a particular society at a particular time, we certainly cannot say the same about the laws of the Torah itself! Laws that are recorded in the Torah are timeless and forever meaningful — whether they are immediately relevant or not.

Further, one can debate whether capital punishment for murder, as prescribed by the Torah, is moral, ethical, or right — or whether it would even still act as a deterrent. The giving of lashes is another good example of a topic for such a debate. Indeed, the epitome of such examples would have to be the Torah’s treatment of rape. Today, rape is absolutely and unequivocally criminal, whilst the Biblical punishment prescribed in Parshas Mishpatim is a measly fine of 100 silvers3. On the other side of things (not at all to equate the two) there is seduction — something that today is quite common, but that the Torah sees as an offense punished by a fine of 50 silvers. Needless to say, these laws are quite dated. Are they still relevant? Why waste our time learning such things? Put quite simply: If these mishpatim were prescribed simply so as to establish a civil order, and are no longer needed as such, why continue their study, much less their application?!

To be sure, there is more than a small question as to whether the mishpatim of the Torah would even actually establish any semblance of social order in the first place! For instance, even a most basic understanding of the Talmudic explanation for the Biblical requirements in order to carry out capital punishment would show just how utterly unlikely it is. It was said that a court that put someone to death once in every seventy years was seen as over-zealous! And this is all not to mention the fact that there is no Biblical concept of jail! What sort of society could function without some sort of penitentiary system?

Clearly, then, the mishpatim of the Torah are not meant merely as a means to keep social order.

The King & Sanhedrin

As explained in various places throughout the Talmud4, it is the King (or Chazal/Sanhedrin during a time in which there is no King) that is told by the Torah to create laws and systems so as to establish and maintain social order. The King was allowed to execute those that he deemed rebellious, or that violated the law6. There are even instances in which incarceration is indeed used as a form of capital punishment for a guilty party not quite capable of being executed at the Biblical level, in which he is left to starve to death in jail5.

It emerges, then, that it is the King, or Sanhedrin, that is meant to be responsible for civil order — not the mishpatim of the Torah6. There are thus, as many meforshim explain, two kinds of “mishpatim”. There is mishpat tzedek, those laws given by God and recorded in the Torah, and mishpat, those laws created by the King/Sanhedrin.

Mishpat tzedek is what is written in the Torah, plain and simple. It is the justice of God. It has inherent religious value; God wants it to be the presiding legal system. It is not there simply to preserve civil order. According to mishpat tzedek, the murderer is to be punished only in certain circumstances — not for the purpose of preserving civil order, but simply because it is “the right thing to do”, namely God’s will. And so on for all other mishpatim recorded in the Torah. They are to be followed simply because they are the will of God. The prescription of lashes for violating Shabbos is not given to preserve society, but as a truth. The rapist must pay a fine not to preserve society, but because God decreed that such is to be done.

Society, however, must be preserved. This happens via the Biblical tool of mishpat. Without question the rapist is to be jailed for life, or even executed. The same goes for murderers, even if their conviction does not quite meet the high Biblical standards for capital punishment. These civil-order-keeping laws, that are indeed meant to adapt and shift with society, are called mishpat, and are the responsibility of the ruling party in each society and generation.

Mishpat vs. Mishpat Tzedek

Civil order is very clearly not the purpose of the mishpat tzedek contained in the Torah. They serve a different purpose. Why, then, are the laws in the Torah prescribed as they are? Quite simply, we do not know. The laws are simply as God commanded them. For when a human creates a law prohibiting theft from other humans, it is only to ensure civil order. It does not speak to theft’s inherent rightness or wrongness. Such a law would only make theft wrong for society, as it would inhibit the general societal ideal of leaving each to his or her own, without bother. God’s law, however, in prohibiting theft, also decrees it to be fundamentally wrong. Such is mishpat tzedek, pure justice. Some of the laws may be dated, yes, but they remains forever true and meaningful nonetheless.

(For instance, slavery might not exist today — and thus the laws concerning it that were laid out in the Torah are no longer relevant — but the Biblical system remains the true system. Nobody compels us to put it into place, certainly, but should a society emerge once more in which slavery exists, the Biblical laws will be forever binding. In such a situation, the laws of the Torah is what God wants done.)

There is deep religious value in understanding all of this, for the laws of religion do not exist so as to make people feel good. The Torah is simply the will of God in any given situation. As Rav Mendel Blachman was wont to say: When you meet God, you can ask Him why He wants things the way that He does.

As far as mishpat tzedek is concerned — meting out pure, Divine justice — the rapist is not jailed. As far as mishpat is concerned — maintaining civil order — he absolutely is jailed. Ultimately, both are are desired by God, but at two distinct levels, two distinct realms. They are two different categories of law, accomplishing two different goals.

First, mishpat tzedek, theological law, is established in the Torah and set for all time as the will of God. These laws do not change. Then, on top of this, is the system of mishpat, also prescribed by the Torah, to perpetuate civil order as is needed and relevant in each generation, so as to best live a healthy religious lifestyle. And these laws, of course, can, should, and do change generation to generation so as to best serve the current society. Whereas in one generation, according to mishpat, a murderer might be jailed, in another he might be hanged.

A Word On The Reasons Behind Mitzvos

Certainly, there is merit in looking into and determining the reasons behind mitzvos. They can make us feel better about performing them, and cause us to become more committed to fulfilling and respecting them. Fundamentally, however, they have reason and merit beyond what we can understand. All laws, really, are chukim, in this sense — beyond the capability of full human comprehension.

Bringing God Into Our Lives

God’s truth lies not just in the synagogue, but in the mishpat tzedek that applies to every aspect of every moment of life. Being an honest person, and putting on tefillin, are fundamentally the same kind of action. Keeping Shabbos, and not shaming a person, are the same kind of action. For at its core, everything is equally “ritual” and equally “law”. There is no true distinction between the two. If the covenant of God exists only in the synagogue, but does not extend to our places of business, our everyday lives, we are neglecting the very core of our Jewish identity. For the seemingly arduous, detailed, and mundane mishpatim are just as Divine as the fancy and mystifying rituals and chukim.

Mishpatim are not civil laws, but religious laws that express a Divine truth. The secular world has only mishpat, but, as Jews, we possess also mishpat tzedek. God must be brought even into the daily drudge of society. Such is our calling as Jews.

1. The thoughts and ideas in this essay are largely based on my rebbe, Rav Mendel Blachman.

2. Proverbs 3:6

3. And the requirement for the rapist to marry the victim, if the latter so chooses.

4. See Kesuvos 33b, Sanhedrin 46a, and Yevamot 90b which even discusses the fact that Beis Din killed people for being publicly intimate.

5. See Sanhedrin 81b. See also Rambam Hilchos Sanhedrin 18:4-5.

6. Sanhedrin 14b

7. Indeed, it is from this reality that the entire concept of hefker Beis Din hefker derives.

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