Does Our History Become Torah Law?

Hi everybody, this is Rabbi David Fohrman and welcome to Parshat Mishpatim. You are watching Aleph Beta.

Parshat Mishpatim contains a lot of laws, the laws just kind of seem to come out of nowhere. Laws about murder, laws about torts, all sorts of laws. I would like to suggest to you that at least in some cases, these laws don't come from nowhere. They come actually from our very own history, as if God goes back to what we have done, when we were not yet a nation, when we were a family, and uses this as kind of raw material from which to shape these laws. God is talking to us about our own history.

What Is the History Behind Torah Law?

I want to demonstrate a little bit of this to you and some of the surprising conclusions that emerge from it. In the laws of murder, which Mishpatim delineates.

Okay, here are the verses. When we read them, I would like you to keep two things in mind, A. what are the problems here? B. does any of these remind you of anything we have encountered before?

Here we go: makeh ish vamet mot yumat, 'if a person kills another person, they shall die.' Now the Torah immediately qualifies this, it depends, whether the perpetrator dies. What does it depend upon?

One thing, obviously, is, he has to do the act, he has to kill the person. But, the other is he has to have the right intent. So the Torah says, va'asher lo tzadah, 'If he doesn't have the right intent,' if he wasn't planning on killing him from before, veha'Elolim inah leyado, 'and God just kind of brought it about,' it just happened by accident, vesamti lecha makom asher yanus shamah, then God says, 'I am going to give him a place, to run away from. I am going to make sure that he has refuge from any relatives who might want to take revenge for the murder and kill him.' It was an accident, it wasn't really his fault. God just sort of made it happen. That's one kind of murder. Murder that's not culpable because the intent wasn't culpable.

Now, the Torah says, but what if the intent was culpable? What example is that? Well, vechi-yazid ish al-re'ehu lehorgo ve'ormah, 'if a person plots in advance to kill him secretly,' so, me'im mizbechi tikachenu lamut, 'you can take such a person away from my very altar to die,' I am not going to give him any place to run away from. It’s not just, it can be somebody who is trying to get revenge against him; the state itself is going to do away with him, with capital punishment.

So, these are the two verses. Now the problem I have with these verses, one problem I have is that, to me, they are out of order. I think what would have been much more logical if you said, look, makeh ish vamet mot yumat, 'if a person kills somebody, then they are going to die.' Under what circumstances is that true? If a person plots in advance to kill his friend, that's when you do away with him. But if he didn't have culpable intent, if he wasn't trying to kill him, God just made it happen, it was an accident, then the person will have refuge, the state itself will provide refuge for a person like that. That would have been the logical way but we reverse it, we talk about the exception before the rule.

Why do we do that? So I think, maybe the answer to that is that the Torah is actually following its kind of own chronology because the events that it is patterning these laws after, actually happened in the order in which the Torah tells us they happen. In other words, asher lo tzadah, 'the thing that happens without intent,' happens before the thing that happens with intent. What things are we talking about?

What Is Jewish Law Based On?

Well, for that we just need to look at the operative verbs in each verse. Let's start with chi-yazid ish al-re'ehu.

So that word for killing is very unusual word, yud-zayin-dalet. Yud-zayin-dalet actually appears only one other time in the Torah, and, it is a Yaakov and Esav word. Remember when he made that lentil stew, and his brother came home from the fields and he was tired and he said, give me some of the lentil stew. So Jacob says, I will be happy to give it to you but sell me your birthright. Well, the lentil stew was called nazid and the verb for making that lentil stew was called yazid, or in that case, vayazed Jacob nazid, yud-zayin-dalet. Jacob was preparing the lentil stew.

Strange that word, the only other time yud-zayin-dalet appears is right over here. But you know we could just be getting ahead of ourselves, I don't know, it could be a coincidence. But you know, it doesn't really seem like coincidence because actually look at the verb in the other verse we talked about, it is also a Jacob and Esav word. How uncanny! Va'asher lo tzadah. 'Hunt,' I mean that's Esau. If Jacob is the guy who made lentil stew, Esau was the hunter, he was going on the fields that day to hunt. He is known as the one who's yodea tzaid, the one who knows how to hunt. His father comes and tells him, go hunt for me venison.

So it is almost like we have Jacob and Esav popping up here in these verbs. And it’s not just in the actual words; it’s in the larger ideas of what the verse talks about. Let's go back to that verse that had to do about somebody killing with intent and with malice.

First of all, ask yourself, did that ever happen in our history? Do we ever have an example of somebody lying in wait to kill someone else? And the answer is, yes.

Digging into the Historical Source of Jewish Law

There was actually somebody who lied in wait secretly to kill someone else. It was Esau. Esau, after Yaakov deceives him with the blessings, what does the text tell us? Yikrevu yemey evel avi, 'soon my father will die,' Esau says to himself. Ve'ahargah et-Jacob achi, 'and I will kill my brother Jacob for what happened.'

Now just stop and ask yourself this, why does Esau want to kill Yaakov? You might just say, well, he stole the blessing. Obviously he is very upset but it wasn't just this local event which happened right now that Esau is mad about. If you back up just a few verses before, Esau says, hachi kara shmo Yaakov, 'This is why they call him Yaakov'. Yakveni zeh fa'amayim, 'he's tricked me twice'. Et-bechorati lakach, 'way back when we were kids, he took my birthright.' V'atah lakach birchati, 'now years later, he is taking my brachah'. Taken two things from me, that's why he hates him.

So it is like the Torah is telling you, you know what we mean when we say malice aforethought? You know what we are talking about when we are talking about Esau who lies in wait? We are talking about somebody who hates somebody. Going back decades, he's been waiting and waiting for the time that he can get him. Slowly his hatred builds and builds. There was one slight and then there was another slight, he plots and waits for the time that he can kill. And in Esau's case, it never actually happened, Esau never actually went through with the action, but this is the kind of malice that we are talking about.

Putting the verses together, chi-yazid ish al-re'ehu lehorgo ve'ormah, 'this man who is the perpetrator, who wants to kill his friend in stealth', what is it that got him so angry, is the chi-yazid, all the way back to the lentil stew when I was angry at him. I have been lying in wait for decades until the moment when I can get him. The Torah is taking that idea and shaping it, playing 'what if' with us. What if he would've gone through with it? He'd be liable for capital crime.

And then the Torah says let's take the other side of things, in Esau's case, he had this sort of culpable intent, he was thinking about killing, but he never actually went through with it but what if we have the reverse? What if we have somebody who went through with it but didn't have the intent? That's the other verse. Asher lo tzadah veha'Elolim inah leyado, 'it was the accident, God just made it happen,' vesamti lecha makom asher yanus shamah, 'I will give him a place to run away.' Yeah, sure, he is guilty of killing but there was no intent. Fascinatingly, if you look carefully to this verse, what does this remind you of in the Jacob and Esau story? Who got a place to run away from, in order to escape the vengeance of someone who might come after him?

It was Jacob himself. Rebecca says, 'go run away to my brother's house. Esau is going to kill you.' And now, here is the surprising thing, it emerges that in the story that the Torah is telling us, the story on one hand is the story of Esau, the person who wants to kill with malice aforethought, but it is also a story about Jacob.

Jacob did something alright, he stole the blessing of Esau but it was asher lo tzadah, he wasn't doing it out of malice, he wasn't trying to get the hunter. Elokim inah leyado, it was God who just made it happen. Circumstances conspired, his mother comes in and says, I heard your father saying this, go quick, get the blessing, before he knows it,his mother puts him on clothes, and before you know it, he is saying 'I am Esau!' The words just like come out of his mouth. Almost as if God had it planned, one way or another God was going to see to it that Jacob got the blessing.

It could've, and it should've, and it would've been so much better if it happened cleanly. How much strife between brothers would've been avoided if Jacob had just come to his father and said, please bless me, I can give you meat? In the end, he did an act that caused pain, this deception but without malice aforethought, without planning. Vesamti lecha makom asher yanus shamah, it is almost like it happened by accident. I’ll give you a place to run away from.

You know, it is interesting, you read the Yaakov and Esau story in Genesis, and the story just ends and you don't really understand how to interpret it. What do we make of what Jacob did, was it this terrible thing? The Torah seems to be coming out and saying, well, there may have been terrible consequences, in terms of the pain that Esau felt, but it's almost like the Torah is playing defense attorney for Jacob here, and the larger picture is that he just really didn't planned to do this, it just sort of happened.

For those of you who are interested in a more detailed explanation of these ideas, I'd refer you to 'Yaakov, man of truth', the second of those lectures goes into an analysis, blow by blow, of the deception story, which really comports the kind of ideas which we are talking about here. So take a look at that there, and I think you may find that quite interesting indeed. And in the meantime let me leave you with the following thought.

A New Way to Define Torah Laws?

What I have shown you here, I believe, is the beginning of a much larger pattern that animates many of the laws in the Torah. These laws don't come out of nowhere; often, they come out of our history. They’re a divine response to our history. Our family history in Genesis ends up becoming a template for laws that we as a nation must abide to, so that we can live out a perfected version of that history.

Maybe there were mistakes that we made that need to be corrected, so laws correct those in the future. Maybe there were times that others took advantage of us, say see, never allow yourself to get taken advantage of by them. Sometimes we were the victim of somebody else who was terribly evil, and they become a paradigm of evil that we must never allow ourselves to emulate. All sorts of possibilities as you travel through the kaleidoscope of these laws. You see a good example of this, by the way, if you go into the last year's course that we did on the Haggadah. The whole intricate laws of korban Pesach, of the sacrificial paschal lamb, the most detailed laws of any sacrificial offering, they all play off of our history. They are the goats and coats stories, one other time, perfected.

One day I hope to get a chance to do a course to kind of show you how there are other sets of laws as you continue going through the early, legal chapters of law in Mishpatim and even the Ten Commandments themselves, that all hark back to our history in fascinating ways. In the meantime, I leave this for you as a mystery to explore. Let me know what it is that you find. We will compare notes one day.

Have a good Sabbath.