Torah – Not a Code of Law

Adam Mintz [00:01:36]: We move this this week from the narrative to the code of law, which is exciting.

Geoffrey Stern [00:01:42]: Absolutely. Every week is new. Every week it seems like we’re starting all over again. So there is an expression about something called the Daled Amot of Halachah, the four cubics of halachah. And the way that is typically taken is that the Torah is all encompassing. You cannot escape the rules of the Torah. There are codes written like the Shulchan Aruch and the Mishnah Berurah that really, Rabbi, define anfor observant Jew every moment, every aspect, every every action in a given day. And there were those who would argue that what we’re beginning today in terms of the laws that we’re getting is the beginning of the Torah becoming a part of every moment, every aspect of our lives. I looked up this concept of Daled amot Shel Halachah, the four cubics of halacha. And it’s kind of interesting. It says in Baruchot 8a, this concept that halachah is, this a most sublime pursuit is expressed in that which Rabbi Ḥiyya bar Ami said in the name of Ulla. Since the day the temple where the divine presence rested in this world was destroyed, the Holy One, blessed be he, has only one place in his world where he reveals his presence exclusively. Only the four cubics where the study of Torah is undertaken. It’s interesting, Rabbi, unless you think that I’m taking the way arba amos of halacha is normally used in terms of God and Torah being everywhere. This is actually limiting. This is actually saying that actually God is only in the Arba Amos shel Halacha. But in any case, as our starting point, I wanted to use that because there are many, as I said in the introduction, who will see Mishpatim as the beginning of a code of Jewish law, a code of Hebrew Law that encompasses every aspect of your life, and that is typically referred to as the Arba Amos Halacha. We’re going to use this, as I said in the intro, as a way to find and discover someone who’s fascinating. I’m showing here a picture of Umberto Moshe David Cassuto. He lived from 1883 to 1951, and as you can see, looks like a traditional Orthodox Jew. I do like hands. I like the handbar mustache. There’s no question about that. But he came to the state of Israel right when it was established, and he became one of the great scholars at the Hebrew University. Umberto, he does come from Italy. And what he became known for, Rabbi, is two things. One, which is going to be close to your heart and that of your wife Sharon, which is that he took a trip to Aleppo, Syria, and he actually viewed the Aleppo Codex. They would not let him photograph it. And so he spent five days there and basically was the last scholar, Jewish scholar, to have seen it before a number of pages disappeared. So he was totally dedicated to the text of the Torah. But the other thing that he does, and I have quoted him over the last few weeks, I don’t know how long he’s been on Sepharia. Right now he’s on Sepharia only in Hebrew. When I first started reading him earlier this year, I had to do my own translation. Since then, I’ve gone ahead and made the investment, and I’ve bought the translation of his works. In terms of his commentary on the Bible, he only has Genesis and Exodus, and it’s a wonderful translation by Israel, Israel Abrams, and we’re going to be using it. Rabbi Abrams, if you’re listening, please make your English translation available to Sefaria students. We will still buy the book, trust me.

Adam Mintz [00:06:03]: Where did you find the translation?

Geoffrey Stern [00:06:05]: On Amazon. I bought it on Amazon. And it happens the version that it happens to have is the large print version. So I don’t know if that’s because people of my age are purchasing it, or because, as they say in the blurb, it has extra large margins, so you can make notes in it. But that’s what it says on Amazon. I digress. So the other wonderful thing that he’s done is something also very dear to my heart and yours as well, is he follows the peshat, the actual meaning of the text. He was dedicated to determining what a reader of the text in the day that it was out there would have read into the text. And this is where things start to get interesting. Because he believed in order for us 20 and 21st century readers to understand the text in the same way, we have to dive into all of the various linguistics, philology as well, when we look at a code of law, to look at the codes of law that were there in that world, because a reader, a listener to these laws would have known in some manner what else was out there, if only by practical experience, he would know how the weights are used in the market, what happens when somebody steals something or puts their hand on those weights. So he became a scholar in Ugaritic, Assyrian, Akkadian, and he really believed that the Jewish people at the time of the Exodus, just like all other contemporary nations, its collections of laws. The Torah does not come to present a complete collection of laws, but rather to add to the laws which already are extant and accepted in society. In order to interpret the laws of the Torah, we must understand what the accepted laws are at that time and what the Torah comes to change concerning them. So what’s fascinating, and we’re going to see this, we’re going to delve into his commentary on this week’s Parasha, is that not only is it a derech halimmud, a way of studying the text, that you have to know what was in the milieu at that time. But he also will say that because the Torah was a piece of work that was not written in a vacuum, it doesn’t have to say everything. It might not have to explain the laws of mourning, because this is how people mourned. It might not have to explain necessary all of the different rituals of marriage, because according to a cassuto, what it came to do was to change laws. So when it objected to something, when it had to add to something, that’s when it spoke out. It didn’t tell you how to eat food, because people already knew how they were eating foods in each particular country. Some used their hands, some used their silverware. It’s a revolutionary approach, is it not, Adam?

Adam Mintz [00:09:10]: Yeah. No, it’s fantastic. So you’re talking about practically, but think about it religiously. The idea that the Torah is dependent on the laws that are out there. It’s a very modern Orthodox idea. It’s the kind of thing that you would have heard from Rabbi Riskin in the 1970s, that you have to know the world around you because Judaism builds on the world around us. It’s not the ultra Orthodox view. The Haredi view is that Judaism is in conflict, conflict with the world and, you know, and Torah wins over the world. But he takes a completely different view. And it’s long before Rabbi Riskin that he takes that view. So it’s really fantastic.

Geoffrey Stern [00:09:54]: And the other interesting thing that I discovered, and again, we might see this when we read him in the original, is it’s not a coincidence that he wrote these things as a new citizen of a new state where they were had to decide, do we create everything? Ex nilo yesh m’ayin. As if it didn’t exist. Or can we accept a red light means stop and a green light means go. And we might say, you shouldn’t jaywalk. It’s a whole different perspective on what the Torah came to do and its assumptions. So I totally agree with you. It reflects really on what modern Orthodoxy came to do. And it also reflects on how does the Torah interact with dine de malchuta, the laws that are already existent. How does it react and interact with customs and with the norms of the day. So here we are. The first verse of our Parasha, it says, and these are the laws which you shall put in front of them. So I’ve left the original Hebrew for those of our readers who like to see it in the Hebrew. I’m going to skip to the English translation. It says, in the words of Cassuto after the introductory statements which set out the principles of Israelite worship, the divine communication proceeds to give Moses a series of judicial regulations. The general subscription to the entire series is now, these are the ordinances which you shall set before them, that is, which you shall present and propose to them. The covenant has not yet been made, and everything is said in the form of a proposal. So he even raises the stakes, Rabbi. He doesn’t go for this na’seh v’nishmah stuff and all of the rabbinic baggage that we put on it. He’s saying, you got the PowerPoint presentation. That was the Ten Commandments. Now we’re going to drill down and I’m going to propose some of these things. And the people are listening in a discriminating manner.

Adam Mintz [00:12:06]: Well, let me Just say that the last chapter of this week’s Parasha is actually where na’aseh v’nishmah comes from. There’s an interesting thing. You have the code and then you go back to the Sinai experience. They again talk about accepting the code. I think that’s what he means. You have the code and then you have na’aseh v’nishmah, this is only a proposal. And then at the end afterwards they accept it.

Geoffrey Stern [00:12:30]: I like that, I like that. So he says it is self understood that in order to comprehend and evaluate these legal paragraphs, it will be necessary to compare the collections of statutes of the ancient east which were discovered in recent times. So when I read this rabbi, I assumed he was talking to me. I quote a podcast or I should say a blog post from a religious Israeli place where they’re talking about all of the great scholars of biblical learning. And she takes it the way I wanted to take it, is not only do we have to know and comprehend all of the other collection statutes, but the educated reader in the day had to as well. The Torah, and this I cannot emphasize enough. What Cassuto is saying is this is not simply isolated to academics today. You have to assume that the people of the day that were evaluating this and we had a little bit of this last week in the midrash of how the B’nai Yishmael and the B’nai Esau they compared it, they said, nah, I don’t think that’s for me. He is claiming that that’s what we have to assume the listeners did. And so he goes ahead and it’s wonderful if you look at the Hebrew and Cassuto goes ahead and based on modern science of his day, in the 1950s, he lists all the codes that he has studied and that he is going to bring to the fore when he analyzes and asks himself the question what is new in what we are being presented with here? He looks at Sumerian and Akkadian laws, the laws of Eshnuna. He talks about extracts that were found. We’re Talking about the 18th century BCE, he’s talking about Hammurabi’s code, which was again the 18th century laws of Lipit Ishtar. He’s talking about Assyrian laws, he’s talking about Hittite laws. So we are literally going through the gamut of the legal systems which not only reflect the legalities of the day, but also how people acted in those days. And this is his introduction. And what he says, and this is where he’s revolutionary, is that there’s something dramatically different about what we are about to read. An examination of the codes and documents clearly proves that there existed in the countries of the East a legal tradition that was unitary in its basic elements and principles. From the time of the first publication of the Hammurabi Code, much research and writing have been devoted to the comparative story of the Pentateuchal laws and those of the Eastern people. It is not out of place to summarize here briefly some of the results of my investigation insofar as these can contribute to the exegesis and comprehension of this section. So Cassuto is writing in Hebrew. He’s in the state of Israel. All of higher biblical criticism, all of scholarly work on the Bible, from Wellhausen to today, has been done in German and it’s been done in English. And here he’s writing in Hebrew and he’s saying, I need to contribute to this. Rabbi, unfortunately, his contribution wasn’t recognized that much. You don’t see it brought up in the scholarly journals. And this is what he wants to establish. He says that basically the legal tradition of the ancient east was in all its branches, secular, not religious. The sources of the law were, on the one hand, consuetudo, and on the other hand, the king’s will. So the first thing that he says, if you look at Hammurabi’s code, if you look at all of the other codes that I mentioned before, they’re secular. Now, of course, Rabbi, in the Hebrew, the word he uses is hiloni. They are secular. And so he is saying it now. It is possible to show that also among the Israelites, during the whole period preceding the destruction of the first temple, the sources of the official law were also the secular statutes of the ruling authorities accepted at that time, Whereas the Torah laws were regarded as religious and ethical requirements directed to the collective and individual conscience. What he is saying is that what makes the Torah different and, and you and I could say, well, isn’t it obvious that it’s a religious super law? But what he’s saying is, goes against, I would argue, mainstream Jewish tradition, which is there is this secular way the world operated legally. And then the Torah comes in to somehow complement, somehow emulate, sometime improve and sometimes disagree with. But it’s all in that doing. And all of those other laws do not have that aspect of a sacred text.

Adam Mintz [00:17:31]: So, let’s just talk about that for a minute. The other laws, like Hammurabi, Hammurabi was the king. So the laws come from the king. What’s surprising in Judaism is the laws come from the God. And the reason for that is because they practice idolatry. So they have a lot of different gods. They don’t have one God. So monotheism allows for religious law. Idolatry doesn’t allow for religious law.

Geoffrey Stern [00:17:58]: Okay, so you’re really maybe giving a reason and you’re tying in that monotheism permitted one to have a law that superseded. I think that’s fascinating and well said, and we should definitely consider that. But first, let’s understand a little bit more about what he is arguing. The first thing that he says is, so what is different about the law that we’re about to study? He says what it does is three different things. It introduces amendments in the existing legal tradition. It opposes or invalidates particular aspects of the legal tradition. And then finally, those that confirm in the name of religion other aspects that are deemed worthy of express corroboration, even in the name of religion in Israel. So, I mean, just if we were to kind of throw some names here. He introduces amendments to the existing legal tradition. We’re going to see what in our parsha, the Torah does to what happens when somebody hurts somebody or kills somebody inadvertently. What happens if somebody harms a slave in terms of opposing invalidating, particular aspects. That, of course, would be idolatry. It could be sacrificing children. Those are things carte blanche. The Torah disagrees with and makes it very clear. But then also the third category is fascinating, that some things it accepts. He will argue that the Torah itself does not include a lot of laws that regard to how do you get married or how do you mourn, because the traditional ways of mourning were okay, maybe not pulling out your hair, maybe not damaging or tattooing yourself. But in general, it speaks out when it disagrees. In other words, we can say it accepts the way it was. So he brings an example of how we know that the Israelite and later Jewish people followed the laws similar to Hammurabi’s code, that either their king made or was already there. So in 1 Samuel 30, it is talking about the laws of taking booty when you go wage a war. And it says, how could anyone agree with you in this manner? Meaning to say that all people can take booty in the same way. The share of those who remain with the baggage shall be the same as the share of those who go down to battle. Shall they be alike? So from that day on, it was made a fixed rule for Israel continuing to the present day. Here, he says, is an example of a law that was made because it was logical and it was made by the king, it doesn’t say, therefore Moses commanded. It simply says that there was a law. In Isaiah 10, it says, Ha, those who write out evil writs and compose iniquitous documents. So it’s talking about people who write bad laws. And Cassuto says there, the formulation of the statement precludes the assumption that it refers, according to the usual interpretation, to judicial sentences, simple sentences in a particular court case. It is worth noting that the text specifically refers to written legislation. And then he brings what I’m reading, and it’s the most interesting example, and it’s from Jeremiah. And I say to myself, I wonder what the haftara is this week. And he is a legal. He’s a scholar. He’s not going to tell you. And by the way, Adam and Geoffrey, this is going to be in the Haftorah that they read the parsha with. But lo and behold, this is the Haftorah, right? And so we don’t normally do this, but in Jeremiah 34, 8, it says the word that came to Jeremiah from God after King Zedekiah had made a covenant with all the peoples in Jerusalem to proclaim a release among them. So in these days they made a new covenant with God. And what was included in it? That everyone should set free their Hebrew slaves, both male and female, and that no one should keep their fellow Judeans enslaved. So they made a new covenant. They accepted the Torah that we have read in this week’s Parasha. Everyone, officials and people who had entered into the covenant agreed to set their male and female slaves free and not keep them enslaved any longer. They complied and let them go. And then in verse 11, it says, but afterward they turned about and brought back the men and women they had set free and forced them into slavery again. So God obviously got very angry at them and says, but your ancestors would not believe me or give ear. Lately, you turned about and did what is proper in my sight. And all of you proclaimed a release to your compatriots, and you made a covenant accordingly before me in the house that bears my name. So God says, I don’t get this. You just agreed to these new rules and now you’re going back on it. So what does Cassuto says? After they had carried out the terms of the covenant, they turned around and took them back and brought them into subjection as bondmen and bondwomen. It is obvious that they would not have been permitted to bring them back to a state of servitude had not the existing law given, given them the right to do this, it would seem that the state law of the time made no provision for the Hebrew slave to be freed after a given number of years. And whoever acquired a Hebrew slave, acquired him forever. The Torah’s law, whose existence at the time is not in doubt, since the covenant was based upon it, was regarded as an ethical percept that was left to a person’s conscience. In the name of religion, the covenant was made. So what he is saying, Rabbi, and this gives us also a dynamic of how this works, is that the people accepted this meta law, this more profound law, this higher ethical law. They made a covenant and then they fell back. They saw it kind of like as an extra. But what he’s doing is using it both as a proof that there must have been existing law systems. He’s using it as a proof to show that the laws of the Torah come to improve upon existing laws. And he also happens to give the dynamic of falling short, so to speak. But it’s fascinating how he uses the Haftarah.

Adam Mintz [00:24:19]: Amazing. So let’s just take a step back for a minute. You know, slavery is a problematic law. You know, we’re talking about it as this. Obviously, everyone accepts slavery and the other cultures accept slavery, and Jewish law accepted slavery. But, you know, the question is what the improvement is. I think the fact that you have to treat the slave nicely and the fact that you can, he only works for six years, and he goes out in the seven year, seventh year, and you give him his wife and all those things, that is the improvement. So it’s interesting and something that we’re very sensitive to, which is the moral problems of slavery, that actually that’s where the Torah improves.

Geoffrey Stern [00:24:58]: Absolutely. And what it also does is it shows how the Torah becomes then a catalyst for change. But it’s not always white and black. In other words, it doesn’t just say change and accept that change to hold. It’s always there, kind of inspiring, motivating, and challenging us. And there’s this dialectic between the way things are and the way things, how they have been, and then how this Torah code, or this new higher authority, as they say at Hebrew National, comes to improve things. So now he starts giving examples. Actually, if you read his commentary on this week’s Parasha, you’ll see how he actually uses the tools that he’s given us. In Exodus 21:12, our parsha, it says, one who fatally strikes another party shall be put to death if a man did so. But not by design. It was unintentional. Came about by an act of God, I will assign you a place to which you can flee. So what does Cassuto here? What does he say? The Torah wishes to affirm and establish the principle in the name of divine law that human life is sacred, and whoever assails this sanctity forfeits his own life, measure for measure. This principle is linked to a religious concept referred to already in Genesis. Whoever sheds the blood of a man, by man shall his blood be shed. For in the image of God was man made Conformably. With this maxim the Torah describes here in legal form, whoever strikes a man so that he dies shall be put to death. However, the life of the slayer is also sacred, and therefore it is forbidden to put him to death. If he took his fellow’s life unintentionally, an accident having occurred, but if he did not lie in wait, that is, he did not attack with the intent to kill. The Torah’s purpose is to amend the primitive practice of blood vengeance and also to oppose the principle reflected in the Code of Hammurabi, according to which one who causes the death of another, even unintentionally, must be put to death. So here the Hiddush, as we used to say in the yeshiva, is not that you put this person to death if he kills another person, it’s when.

Adam Mintz [00:27:17]: You don’t put him to death because.

Geoffrey Stern [00:27:21]: Of the love of those who are made in the image of God.

Adam Mintz [00:27:26]: That actually is fantastic, right? I mean, you’re right. It’s like he’s a Yeshiva Bacher. He might be Italian, but he’s a yeshiva Bacher. And he sees. He gives you the surprise, right? It’s not what you think, but it’s the opposite.

Geoffrey Stern [00:27:39]: Yep. So he gives another example from our Parasha. If you look at Exodus 21, it says, when any party steals an ox or a sheep and slaughters it or sells it, that person shall pay five oxen for the ox and four sheep for the sheep. We kind of alluded to this last week when we had that money laundering deal of when you steal. But again, these are laws that have comps, so to speak, within the other law codes that he mentions. It says if the thief is seized while tunneling and beaten to death, there is no blood guilt. In that case, if the sun had already risen, there is blood guilt. In that case, the thief must make restitution, and if lacking the means, shall be sold the theft. But if what was stolen, whether ox or ass or sheep, is found alive in the hand, the person shall pay double. So again, he’s getting into robbery, where it’s done tunneling at night. The assumption being that this person is going to be willing to kill in order to steal. There are questions of if the sun rises, even if he’s tunneling, maybe he’s doing in Broadway light, so you can’t kill him. The Torah cites these laws in order to oppose the system of the legal tradition reflected in the laws of Hammurabi, according to which a thief was sentenced to death if he had not the means to pay or if he stole by breaking in in accordance with the principle of the sanctity of human life. The Torah had compassion on the thief’s life. It annulled the penalty of death in the case of the thief who was unable to pay and substituted for it the penalty of being sold into slavery. It also protected the thief found breaking in and limited this protection only out of its even more than justified concern for the life of the owner. So this speaks to what you said a second ago about the laws of slavery. You look at them slightly differently when you’re becoming an indentured servant instead of being killed.

Adam Mintz [00:29:43]: Right? You know that Hammurabi, the punishment for everything was death. So again, that’s the chidush of the Torah, is that not everything gets the death penalty.

Geoffrey Stern [00:29:53]: So I have only brought just a few examples, but trust me, what he is doing is he’s using his comprehensive knowledge of all of these other legal codes, and it makes his read of our laws totally different. And what he is arguing is not only does it change the text for us, but it potentially changes the way the original participants would have heard it. And I think that becomes a game changer. I think that is a game changer in terms of how we look at modern biblical scholarship, where archeology and philology and comparative religion become tools to us to rediscover the peshat of the text. And I will also say, getting back to your comment that you made at the outset about modern Orthodoxy and that I made about the secular Israel that he was writing in, he was looking at this also as the place of these Torah rules in a living, dynamic modern society. And what he was saying is that Torah, the Dalet Amos of Halachah have their place, and that does not diminish them. It emphasizes the ethical, the spiritual part. But you can leave a whole lot alone. And there is room, large room, to celebrate common decency, common ethics, common moral codes. You don’t have to destroy everything if you want to improve. And I think that is a profound message for the world we live in for the state of Israel and the conflict between religion and state. And it’s clearly for us, provides an amazing lens to study our texts.

Adam Mintz [00:31:47]: Amazing. Remarkable today. Thank you, Geoffrey. Thank you, Professor Cassuto, for a brilliant insight into this week’s parsha. Enjoy, everybody. We’ll see you next week.

Geoffrey Stern [00:31:58]: See you all next week. Shabbat Shalom.