Is civil law from Sinai?
18 And the LORD said unto Moses: Thus thou shalt say unto the children of Israel : Ye yourselves have seen that I have talked with you from heaven.
19 Ye shall not make with Me--gods of silver, or gods of gold, ye shall not make unto you.
20 An altar of earth thou shalt make unto Me, and shalt sacrifice thereon thy burnt-offerings, and thy peace-offerings, thy sheep, and thine oxen; in every place where I cause My name to be mentioned I will come unto thee and bless thee.
21 And if thou make Me an altar of stone, thou shalt not build it of hewn stones; for if thou lift up thy tool upon it, thou hast profaned it.
22 Neither shalt thou go up by steps unto Mine altar, that thy nakedness be not uncovered thereon. {P}
1 Now these are the ordinances which thou shalt set before them.
Hashem spoke to Moshe and directed him how to design an altar and its ramp. Suddenly and without warning He gives him a different, clearly demarcated off set of laws and commands him to set these laws 'in front of them'. The relationship between the two directives is not at all clear. It is rendered even more confusing by placement of an 'open' space (pesucha) between them, which separates but connecting them with an 'And' that brings the two passages closer together.
The function of pesucha is not well understood. While often taken as analogous to a chapter demarcation, many units of meaning that should have been separated by a pesucha are found to have no separation at all or they have a setuma, a 'closed' space [1]. Similarly, the 'And' in the beginning of asentence sometimes functions as nothing more than a transitioning device that is expected to always be found in the beginning of sentence and sometimes as a bona-fide 'and', or, at times, as both [2]. In the majority, VAV indicates nothing more than a beginning of a sentence, the function that the related WAW performs in classic Arabic. We therefore have the situation in which two devices that function in contradictory manner. In addition, the requirement to "set them in front of them' is not clear in its practical application.
How do the two sets of laws differ? Are they different in source, in function or in application. If they differ in the latter two, what does it suggest about their source?
We thus have 3 problems.
1. Source: Is it possible that G-d did not dictate the specifics of the mishpatim to Moshe? One might certainly think so for the usual formula "And Hashem spoke to Moshe, saying" is absent here. Perhaps He only commanded Moshe to provide such laws for common good as he considers necessary and to formulate them as he chooses.
2. Function: What are the implications of Laws being 'set before them". Does this refer to a different method of study or retention? How would it be different from that of other laws.
3. Application: Are these immutable principles or do they come with a guide to interpretation? Are they accompanied by Oral Law? Are they a part of religious law or can even a non-member of the religious community apply them as long as he applies them correctly? If the latter, are they of a Divine origin.
The concern behind these questions can be reduced to a single pre-occupation. Does the way mishpatim are presented signify that they are in some way different, not as "Divine? The theological issue is clear.
The Tannaim had to consider how to formulate their responses to this implication [3]. Let us read the whole passage in the Mekhilta in the beginning of Mishpatim and then discuss each view.
R. Ishmael said: "These" (ordinances) add to the above ones. Just like the ones above are from Sinai so also these ones are form Sinai.
R. Akiva said: "Why does it say "these ordinances"? Because it states, "Speak to the Children of Israel and say to them (Lev. 1).You may think that this means once; how do you know that it means even 3 and 4 times [4]? It says, "And teach the Children of Israel " (Deuteronomy 31). Perhaps it means that they study but do not memorize (shonin)? Learn to say, "Place it in their mouths (ibid). Mat be (it means) that they memorize but do not understand? Teach to say [5], "And these are the ordinances" - put it in front of them like a set table, as it says, " You have been taught to know (ibid 4).
R. Yehuda says: "These are the ordinances" - taught in Mara, as it says, "There He placed for him (people) law and ordinance (Exodus 16)."
R. Alazar Ben Azariah says: " Behold, Gentiles who judges the same as Jews, I might derive that this is valid; it teaches "that you set before them". You judge theirs and they do not judge yours….
R. Shimon says: Why did ordinances deserve to come before all the commandments of the Torah? For when people go to court, there is rancor between them. The case is closed - there is peace between them. So also Yisro said, "If you do this thing.. all these people will come to its place n peace".
Let us look at individual statements.
R. Ishmael said: "These" (ordinances) are an addition to the ones above. Just like those ones are from Sinai so also these ones are from Sinai.
R. Ishmael's point can be understood in several different ways. R. E. Mizrachi suggests that he means to say that mishptim were also given among thunder and lightning. Ohr Hachaim strongly rejects this interpretation on logical grounds. Ohr Hachaim ad. loc. suggests that R. Ishmael takes the unique formulation and introduction to the mishpatim as an indication that all their details were handed over by G-d to Moshe at Sinai. This is in distinction to R. Ishmael's view that general principles of (other) laws were given at Sinai but the particulars were taught in the Tent of meeting. Alternatively, and the view I prefer based on Midrash Hagadol's version ('You may think that these laws were not form Sinai') R. Ishmael may be addressing the issue of the source by saying that these laws are Divine in origin and not a product of Moshe's own mind. R. Ishmael is thus addressing solely the question of source of mishpatim.
R. Akiva said: "Why does it say "these ordinances"? Because it states, "Speak to the Children of Israel and say to them (Lev. 1).You may think that this means once ; how do you know that it means even 3 and 4 times? It says, "And teach the Children of Israel " (Deuteronomy 31). Perhaps it means that they study but do not memorize (shonin)? Learn to say, "Place it in their mouths (ibid). Mat be (it means) that they memorize but do not understand? Teach to say [6], "And these are the ordinances" - put it in front of them like a set table, as it says, " You have been taught to know (ibid 4).
R. Akiva approaches the central theological question in an indirect manner. He comments on the issue of study method. He argues that the method is the same as for the rest of Torah. 'Setting in front' means that Moshe must arrange these laws in an extremely usable manner so as to make them easily digestible with the usual study methods. Here too, Ohr Hachaim relates the R. Akiva's view to his general opinion that the specifics of all laws were given at Sinai and merely reviewed at the Tent of Meeting and Arvos Moab . If so, the 'setting in front of them' must go beyond that and must refer to making them especially well organized.
Following our general approach, R. Akiva posits that these laws are studies like all other laws - therefore they are also of Divine origin.
R. Yehuda says: "These are the ordinances" - taught in Mara, as it says, "There He placed for him (people) law and ordinance (Exodus 16)."
R. Yehuda solves the riddle of the abrupt change of subject from Temple matters to civil law by positing that the verses are returning to a topic that was not completed in the past but is now being completed. He buttresses the argument that these laws were directly commanded by Hashem by relying on the representation in Exodus 16 - "There He placed for him law and ordinance". R. Yehuda also addresses the matter of source.
R. Alazar Ben Azariah says: " Behold, Gentiles who judges the same as Jews, I might derive that this is valid; it teaches "that you set before them". You judge theirs and they do not judge yours….
R. Elazar Ben Azariah deals with the issue of application. He negates the possibility that ordinances are immutable and logical principles and not a part of a religious system of law. He also addresses the matter of source by positioning it squarely within the spectrum of religious law.
R. Shimon employs a strategy similar to that of R. Yehuda. He refers mishpatim back to the story of Yisro. The account there demonstrates that civil laws were given under direct Divine command (… and G-d commands you and you can withstand it.). He resolves the quandary of why these laws are "packaged" so differently and "set in front of them" by pointing out that it is in order to ensure justice and that justice attained brings peace.
The unanimity of Rabbinic opinion, however, on the essential questions of doctrine is impressive. What is at stake is the teaching of "minim" that only the Ten Commandments were directly commanded by G-d and that only they need to be followed in practice (See Brochos 12). The Tannaim taught the integrity of the entire Torah as given at Sinai. They, therefore, needed to dispel the impression that mishpatim are not Divine and to refute alternative interpretation.
