Mishpatim 5774

Mishpatim 5774

In late 19th century German a school of Biblical scholarship developed which, among other things, was determined to prove that the “Old Testament” (what we call the “Tanakh”) was not much more than a barbaric and archaic collection of meaningless laws.  Among the favorite targets was the case of the goring ox described in this week’s parasha, Mishpatim, where we learn:

When an ox gores a man or a woman to death, the ox shall be stoned and its flesh shall not be eaten, but the owner of the ox is not to be punished. 29If, however, that ox has been in the habit of goring, and its owner, though warned, has failed to guard it, and it kills a man or a woman—the ox shall be stoned and its owner, too, shall be put to death.                

Shemot (Exodus) 21

The German scholars compared this text with the teachings found, for example, in the Code of Hammurabi which teaches:

If an ox gored a man to death while walking along the street, the case is not subject to claim.  If a man’s ox was known as a gorer but he neither padded the horns nor tied the ox and the ox gored a member of the aristocracy to death, the owner shall pay one half mina of silver.

The scholars claimed the Torah’s insistence on capital punishment instead of financial compensation (as in the Code of Hammurabi) was proof that the Old Testament was even less civilized than the laws of the pagan ancient near east.

However, one of the great teachers of the Conservative Movement, Professor Moshe Greenberg, of blessed memory, former chair of the Bible department at Hebrew University, took up the challenge of these anti-Semitic scholars decades after they lived by completing the comparison they had left unfinished.  True, he noted that Biblical Judaism insisted on the death of the owner of the goring ox who had allowed the ox to kill a human being though forewarned which Hammurabi did not do.  However, he noted that Hammurabi did insist on capital punishment in the following instances:

If a man makes a breach in a house, they shall put him to death in front of the breach and wall him in.  If a man commits robbery and is caught, that man shall be put to death.

In contrast the Torah teaches (again in our parasha):

If the thief is seized while tunneling……….He must make restitution; if he lacks the means, he shall be sold for his theft. 3But if what he stole—whether ox or ass or sheep—is found alive in his possession, he shall pay double.

In other words Hammurabi calls for capital punishment when objects are stolen but not when lives are taken.  The Torah allows for financial compensation when objects have been stolen but not when lives have been lost unnecessarily.  This may not satisfy all of us who oppose capital punishment but on the continuum of humane values Professor Greenberg demonstrated that at the core of the Torah’s teachings nothing is more sacred than the life of a human being.

What a great lesson to keep in mind the Shabbat following our country’s observance of Dr. Martin Luther King, Jr.’s birthday.

Shabbat Shalom,
Rabbi Matt Futterman
Senior Educator