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Beit Midrash Torah Portion and Tanach Mishpatim

The Absolute and the Conditional

Although Mishpatim follows Yitro, the two parshiyot are very different in nature.
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Although Mishpatim follows Yitro, the two parshiyot are very different in nature. Yitro deals with a nation in an abnormal state in the desert. Bnei Yisrael were without a land, without concerns over sustenance and security, and, largely, without an organized form of human governance. Also, in Yitro, the nation reached a one-time spiritual ideal when it received the Torah at Har Sinai. We have discussed, in the past, the Gra’s thesis that Bnei Yisrael reached the level of Adam before the sin. Additionally, the nation was united with one heart and the physical and ethereal worlds stopped in wonder to witness the cosmic event (see Shemot Rabba 29:9). At this point, Bnei Yisrael embarked upon a path in life where the spiritual leads the physical.

In contrast, Mishpatim discusses relatively mundane matters. What are the laws of a Hebrew slave? What happens if he does not want to be freed? We see the laws of murderers, or one who curses his parents. What about one who damages another’s property? These matters are relevant when a normal nation lives normally in its land. What are we to make of the proximity of these diverse sections of the Torah? In general, there are two approaches to the proximity of different sections. R. Akiva says that they are to be learned one from the other; Rebbe says that adjacent sections can be as far from each other as east from west (Sifrei, Bamidbar 131).

There is a strong rule in Jewish law that a punishment must be preceded by a Torah warning (=commandment). This is a fundamental, not just a technical, requirement. Warnings are written in an absolute form: "Do not steal." "Do not rule unjustly." Punishments are usually written conditionally, in the form of "if ... then..." and generally begin with the word "ki" ("should ..."). The warning is, after all, purely Divine, representing what is absolutely just. It has nothing to do with one’s willingness to "pay the price" or the authorities’ ability to implement it. In contrast, the punishment is of practical relevance only under conditions where the authorities can carry it out. It is written conditionally to show that the system of punishment is not based on societal agreement but has its source at Sinai.

The word "ki" appears in Mishpatim 38 times, because our parasha focuses on punishments rather than warnings. The Ten Commandments, found in Yitro, contain warnings, all of which find expression in our parasha. It is important to realize that the conditional description of the Torah’s punishment is not intended to take away from the Divine value of these words of Torah. To stress this, Hashem attached it to the commandments that were given at Sinai. Only after the punishments are presented does the Torah summarize, "Everything that Hashem said, we will do and hear" (Shemot 24:7). As far apart as the sections are, they share their Divine Sinaitic origin.

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