Weekly Torah Commentary: Perashat Mishpatim- The Order of Law

“And these are the laws you shall place before them” (Shemot 21:1).
What legitimates a “law”? To this day the question of the steering and ordering of society by law is one which leads to violent protest and international conflagurations. One of the major anti-war issues today involves the legitimacy of unprovoked attacks by one sovereign domain over another. Is it legal by American law, does that trump international law? What does “legal” even mean? This question of ‘legality’ is closely tied to that of the legitimacy of the society itself. How far can you push in creating laws, or bending them, before society itself breaks?
This is an issue deep at the heart of interdenominational religious politics. The question of change in halacha, ‘law’ or minhag ‘custom’, such as the matter of women’s roles, for example generates rather extreme gut reactions in many people. I do not think the issue is necessarily that of this specific ruling or another per se; what is at stake is the question of legitimacy. How much change can a system tolerate before it is an alternative system altogether? On the other hand, from the perspective of the members of that society, up until what point will the individual tolerate “problematic” rulings before deciding to throw off the yoke of that legislature? When is it time to revolt and start a new society?
Any ordering of society requires the ground of legitimacy; legitimacy of the greater processes which in return leads to the internalized willingness by the citizens to surrender some degree of civil autonomy. The twentieth century has been bloodied by failed experiments in this area; the title of Habermas’ work on this subject, “Legitimation Crisis” (which we will cite from later) is an apt description of the situation of governance in many lands and in its relation to many parts of our lives. It is to this matter which we will turn this week, and we have an interesting test model, a society in formation, the people of Israel now out from under the exploitative yoke of Egypt, deterritorialized and reteritorializing under a new law, a new attempt at societal rebirth and regeneration.
The verse which opens this week’s perasha, cited at the start of this essay, begins with the word “and”. The Midrash points out that this is not the first giving of laws- a set of laws was given prior to Sinai, at Marah, where, according to verse 15:25, ‘there was placed before them statutes and laws’. Thus , if we may draw a schematic diagram of law giving in the book of Exodus, we have the following sequence: Law (at Marah), the revelation at Sinai, and laws (this chapter) again. This structural sequence is noted by the Midrash, which likens this law flanking sequence to that of a woman of the nobility, who always travels with two armed guards, one fore and one aft.
However, the Midrash doesn’t differentiate between the two flanking law sequences, and in fact the Hebrew text doesn’t either. But the Targum does. In both cases, in Hebrew the word for placing the law before the people is the same, lasim, to put. In the Targum, though, in the earlier verse, regarding Marah, the Aramaic verb “gizar” is used, which is a legal term, equivalent to ‘decree’, whereas here the verb “tasdar“, which means to put in order (like in the word ‘Seder’), is used.
The Meor Einayim notes the Targum’s use of the verb ‘ to order’, or ‘arrange’, and links it to the mystical conception that the hylic material of creation, the letters and words, are subject to various “combinations” and alignments (that is, the universe is created out of divine letters, words, and text; this can be more easily grasped thanks to the last scene in the film ‘The Matrix’, where the hero recognizes the visible universe is constructed out of computer code, in both cases, the world can then be ‘read’ if one only knows how).
Thus, to the Meor Eynaim, the implication is that the righteous cause proper formulation of letters, a ‘good reading’, by choosing to live rightly, thus causing the letters to align in the best possible way, while evil doers can force readings which are evil (so too, if one can conceive of the idea that the Torah is really a collection of these universal letters, which could have been rearranged in many possible ways, but due to the errors of human kind much of the text had to be spent on sin and punishment; the Meor Eynayim’s example is that of Vayiqra 26:15- and if you choose to reject my statutes, then…).
There is, then, a reciprocal relation regarding societal legislation. If the lawmakers render decisions that reflect a “placing” of their opinions before God (a phrase found in association with the asham sacrifice), then the society will follow suit and all will be “ordered” and in alignment with God’s will, that is, the ultimate good; thus even punishment will be construed positively as having the deterrent effect of steering those astray back to the proper alignment. Any intrusion in this system by ill-will, however, will set the matrix into disarray.
This relationship between proper action and proper outcome, the Tiferet Shelomo points out, is why the civil laws in the perasha are followed by the blessings of 23:25 and onward- the implication is that of a natural progression, a reflection of the utility of a society predicated upon justice and mercy.
Along this way of thinking, the Mei Hashiloah explains that society’s adoption of a just civil law produces a situation in which the ‘good and merciful’ extends beyond individuals unto one’s material belongings- even the material possessions of one whose heart is totally purified become an extension, a part of this assemblage of justice and mercy, and are thus incapable of doing harm.
The Midrashic reading situating this as a third presentation of law, and the concept of the justice-assemblage, do not fully explain why civil law is specifically presented at this point in the text. Furthermore, why does this segment of the commandments regarding civil law begin the way that it does, with the unpleasant issue of slavery?
I would like to propose that this set of laws in particular is crucial for the establishment of the reciprocal linkage necessary for the creation of this new society, for the structuring of this “Torah assemblage”, to borrow Deleuze and Guattaris’s terminology. The idea of an assemblage describes how laws, language, and custom are not separate accidental parts of society, but act in an interlocking way to produce a totality (their use of a “Castle assemblage” from Kafka’s novel of the same name is a good illustrative example), which in essence is the reciprocal bestowing of legitimation by the people on the laws and vice versa. Let me illustrate the sociology with a quote from an educational theorist, Keniston, quoted in Habermas’ Legitimation Crisis:

‘William James long ago contrasted the once-born and the twice born: the once-born are those who unreflectively and “innocently” accept the convictions of their childhoods; the twice born are those who may adhere to exactly the same convictions, but who do so in a different way after a protracted period of doubt, criticism, and examination of those beliefs…

The Israelite people, slaves until a short time before, knew what the “Egypt assemblage” wreaks upon its victims, exploited slaves. Even revelation would not be sufficient to inculcate the new system among them without convincing proof that now, these “twice born” freed people, would launch a new society of justice and mercy, which includes slaves and similar castes at the fringe and periphery of society, people just like they were. Keniston points out, that challenges to the System take on a certain set of “pre-theoretical” behavioural symptoms:

‘On the activist side are to be found the student movement, revolts by school children and apprentices, pacifists, women’s lib. The retreatist side is represented by hippies, Jesus people, the drug subculture, phenomena of undermotivation in school, etc’

Perhaps this is why we have a two-fold presentation of laws and statutes, flanking the formative Sinai experience. We have seen that Onkelos uses different terminology to refer to the law giving actions in either episode (‘decree’ for the first set, ‘order’ for the second), but we haven’t elaborated why. The two sets of laws are read differently. Rashi explains that the laws given at Marah were religious in nature: the laws of Shabbat and the laws of purity (involving the red heifer purification rites). Perhaps this first set of laws redresses legitimating needs of that element in society Keniston would call “retreatist”, those whose revolt against injustice in society tends toward inward spiritual retreat.
On the other hand, the laws in our perasha, dealing with the most extreme and fringe apects of civil law, address the claims for justice made by those of an “activist” nature, whose demonstrations and rallies aim at extending the rule of tzedek and mishpat not only to the empowered, but to all elements of the new society. Perhaps, as the Sefat Emet suggests, there is an element of progression here- the first step is self purification, self improvement, corresponding to the law of Marah. Then, once one has achieved some level of self understanding, one can strive for Sinai, the relation with the spiritual, with the divine, the relationship with Gd. As a result of that relation, comes the highest form of relationship, the interpersonal.
Peace between peoples- how different the world would be if the interpersonal was viewed as the greatest of all spiritual endeavors. In this vein, I would like to end with a legal ruling of an important Talmudic legal scholar, the Rosh (Rabbeinu Asher, 14th century) found in his commentary on Pe’ah:

For Gd is more pleased by the observance of those mitzvoth (commandments) which improve the lot of humanity than by the observance of those mitzvoth which solely involve the individual and Gd…